Knispel v. Haaland et al
Filing
82
OPINION and ORDER denying 40 Motion for Partial Summary Judgment; granting in part and denying in part 41 Motion for Summary Judgment. Signed by Chief Judge Roberto A. Lange on 01/27/2025. (MSB) Modified on 1/27/2025 to add text (KLE).
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION
STEVEN R. KNISPEL,
3;21-CV-03015-RAL
Plaintiff,
OPINION AND ORDER ON CROSSMOTIONS FOR SLTMMARY JUDGMENT
vs.
DEB HAALAND,SECRETARY,UNITED
STATES DEPARTMENT OF THE INTERIOR;
Defendant.
Plaintiff Steven R. Knispel (Knispel) sued Deb Haaland, Secretary of the United States
Department ofthe Interior(the Secretary), alleging that the Secretary violated Title VII ofthe Civil
Rights Act of 1964 and the Rehabilitation Act of 1973 by engaging in race-based and disability-
based discrimination against Knispel through disparate treatment, hostile work environment,
retaliation, and constructive discharge. Doc. 15. The parties filed cross-motions for summary
judgment. Knispel moves for partial summary judgment on the merits of his claims for race-based
disparate treatment, hostile work environment, retaliation, and constructive discharge. Doc.40 at
3. The Secretary moves for summary judgment on all claims. Doc.41. For the reasons explained
below, this Court denies Knispel's motion for partial summary judgment and grants in part and
denies in part the Secretary's motion for summary judgment.
I.
Material Facts Not Subject to Genuine Dispute
Under District of South Dakota Local Rule 56.1, both parties filed a Statement of
Undisputed Material Facts accompanying their cross-motions for summary judgment. Doc. 40-2
1
(Knispel's Statement of Undisputed Material Facts); Doc. 53 (the Secretary's Statement of
Undisputed Material Facts). The parties then each filed a response to the other's statement of
material facts. Doc. 61 (the Secretary's response); Doc. 60-3 (Knispel's response). This Court
draws the facts primarily from the undisputed portions of the parties' responses to the statements
of material fact. The facts in this section are not subject to genuine dispute. This Opinion and
Order also draws from additional exhibits submitted by both parties that form the factual basis for
their respective statements ofundisputed material facts. Where a party has objected to or disputes
a material fact, a footnote is added with clarification. Because the parties filed cross-motions for
summary judgment, each party's motion is evaluated independently to ensure that the facts are
viewed in the light most favorable to the nonmoving party in determining whether there exist any
genuine issues of material fact.
A. Knispel's Employment and Issue of Evidence Retention and Gun Safety
Steven Knispel, a white, non-Indian male who has been diagnosed with Post-Traumatic
Stress Disorder,^ worked for the federal government in various agencies beginning in October
1992 until his retirement on December 31,2020. Doc.40-2
1-7,88;Doc.61 fl 1-7,88. During
that time, Knispel primarily worked in law enforcement, first as a police officer with the Bureau
of Indian Affairs (BIA) and Bureau of Reclamation, then as a park ranger for the National Park
Service, and eventually as a Supervisory Police Officer in the Office of Justice Services (OJS)
within the BIA. Doc. 40-2
2-6; Doc. 61
2-6. While working with OJS, Knispel was
promoted to Supervisory Criminal Investigator (most commonly referred to as Chief ofPolice or
^ The Parties do not dispute Knispel's race but do dispute whether Knispel has a disability. For
purposes of this Opinion and Order,this Court assumes Knispel has a disability.
COP throughout the record)for the Western Nevada Agency on December 13,2015. Doc.40-2 ^
7; Doc.61 T[ 7.
As Chief of Police, Knispel was responsible for the operation of the law enforcement
program in the Western Nevada Agency, which encompasses several tribal reservations. Doc. 811 at 28; see also Doc. 61 ^ 18. His responsibilities included "planning, organizing, coordinating,
and recommending policy for the criminal investigative and police program." Doc 81-1 at28. He
was tasked with "developing the program budget and monitoring expenditures, providing training
to employees, and ensuring the BIA policy and procedures [were] appropriately adhered to." Id
Knispel was also responsible for supervising and conducting investigations into major criminal
cases and ultimately ensuring that "all investigations [were] properly conducted and
documented." Id His job description highlighted the importance of his role in the criminal
investigation process, noting that failure to carry out timely and thorough investigative work could
result in the loss of prosecution opportunities for convictions involving major crimes. Id
During his first eight years of employment with BIA OJS, Knispel had no "documented
history of misconduct offenses or prior disciplinary actions." Id at 58. Shortly into Knispel's
tenure as Chief of Police, however, the murder charge in the case United States v. Medina was
dismissed after a court concluded the Western Nevada Agency mismanaged evidence. Id at 84—
90; United States v. Medina. 3:16-CR-00009-LRH-WGC (D. Nev. 2016). Compounding the
situation, Knispel left his government-issued firearm unsecured in a restroom while an
investigation into the missing evidence remained ongoing. Doc. 50-2 at 11-12; Doc. 40-1 at 21.
The parties dispute the reasons for the mismanagement of evidence in Medina but agree to
the underlying circumstances that follow. On February 17, 2016, Rafeal Alfonso Medina Jr. was
indicted on one count of Murder within Indian Country for the death of his father. Doc. 81-1 at
74; Doc. 40-2f 20; Doc. 61 ^ 20. The BIA Western Nevada Agency(WNA)was responsible for
managing evidence from the crime scene. See Doc. 40-2 ^ 26; Doc. 61 ^ 26. During the initial
stages of the investigation, Special Agent Maria Hernandez, an evidence control technician for
WNA, managed the Evidence Control Program. Doc. 81-2 at 70.^ Multiple audio recordings
containing interviews were listed in Hernandez's reports as having been conducted,recorded, and
sent to the prosecutors; however, the prosecutors never received them. Id at 74.^ Further, the
recordings could not be recovered on Hernandez's government-issued laptop hard drive or on an
external hard drive. Id at 73. Hernandez resigned from her position as evidence control technician
in October 2016 and subsequently resigned j&om federal services in January 2017. Id at 70; see
Doc. 61 ^23.
Following Hernandez's resignation. Lieutenant Derek Martin assumed the role ofevidence
control technician in October 2016. Doc. 81-2 at 70; Doc. 61 at ^ 24. At that time, multiple
evidence control rooms existed in the WNA,and the evidence concerning the Medina case was
^ The parties dispute the exact date Hernandez"resigned" or "retired." See Doc.61123. However,
the document both parties cite states that she acted as evidence control technician for WNA until
October27, 2016, and left federal services on January 5,2017. Doc. 81-2 at 70: see also Doc. 811 at 70(admitting internal documents indicate Hernandez resigned as evidence control technician
on October 27, 2016). For puiposes ofthese motions,the exact date is immaterial, and the parties
agree Hernandez acted as evidence technician, and Martin assumed the duty thereafter.
^ Secretary Haaland objects that the email communications in Plaintiffs Exhibit 12, Doc. 81-2 at
74, that detail this fact are privileged and alternatively hearsay. The communications are not
privileged because they were not made as part of the representation of the BIA as a client. See
United States v. Spencer. 700 F.3d 317, 320 (8th Cir. 2012)(requiring the communications be
"made for the purpose of facilitating the rendering of legal services to the client"). Rather, in an
email to Knispel,the prosecutor inquired as to the whereabouts of missing evidence and stated the
locations they had searched to that point. These communications were related to the Medina
investigation and not made for rendering legal services to the BIA. The statements do not appear
to be hearsay beeause they are not offered for the truth of the matter asserted. Instead, the
statements are offered to prove the BIA was aware of missing evidence and aware that Hernandez
handled the evidence.
Fed. R. Evid. 801(c). As discussed below, it remains unclear when the
evidence went missing or what caused the evidence to go missing.
located in Carson City, Nevada. Doc. 81-2; Doc. 81-3 at 26-27;^ Doc. 60-3 at
23-26.
According to Knispel, the evidence refrigerator located at the Carson City control room had
consistent problems maintaining its temperature beginning in May 2017. Doc. 81-3 at 26. Knispel
decided the evidence control room should be moved to McDermitt, Nevada, as it was standard
practice in the BIA to consolidate evidence storage in one location, and Knispel believed the
McDermitt location was more compatible for the refrigeration units. Doc. 60-3 at ^ 25; Doc. 813 at 26-27. Knispel directed Martin to transport evidence from Carson City to McDermitt using a
horse trailer. Doc. 60-3 at
26-27. Knispel assisted Martin in removing evidence from the
Carson City control room and placing it into the trailer, which was eventually transported to
McDermitt. Id Evidence continued to be moved from Carson City to McDermitt into September
2017. During that time, two more incidents arose relating to the move. On September 12, 2017,
after learning that subordinate employees were unable to lift some heavier equipment,Knispel sent
a text message to one ofthe employees calling them "pussies." Doc. 40-1 at 19."^ On September
20, 2017, the door to the McDermitt facility was propped open and allegedly left unsecured. Id.
at 20.^
On August 30,2017, an attorney prosecuting the Medina case notified Knispel that at least
a dozen recorded interviews were missing. Doc. 81-2 at 74. Knispel responded on September 15,
2017, detailing the efforts his agency undertook to locate the evidence but without success. Id at
73. On September 27, 2017, the BIA issued a Serious Incident Report regarding the missing
evidence. Id at 82. In addition to the recorded interviews, physical and biological evidence was
^ Knispel admits to this fact but argues the reprimand he received was disproportionate. Doc. 401 at 19.
^ Knispel disputes whether the facility was left unsecured and whether he was responsible but
contends that even assuming responsibility, his reprimand was disproportionate. Doc. 40-1 at 20.
also missing or destroyed.
Doc.61150. On December 9,2017,the United States Attorney's
office filed a memorandum in Medina detailing Special Agent Pamell's investigation of the
WNA's Evidence Control Program and the status of the missing evidence. Medina. 3:16-CR00009-LRH-WGC (No. 34-1). Ultimately, the evidence was not recovered, and as a result, the
coiirt dismissed the murder charge on February 28, 2018. Doc. 61 20; Medina. 3:16-CR-00009LRH-WGC(No. 47).
The Intemal Affairs Division investigated the mishandling of evidence and was unable to
determine when the evidence went missing.
Doc.61
46-48,57. Special Agent Pamell,the
primary investigator, stated the evidence "could have been lost from any point from the time [it
was] collected to the time that [he] began looking into it." Doc. 60-6 at 4-5. Thus, it remains
imclear if evidence was lost during Hernandez's time as evidence control technician, during
Martin's time as evidence control technician, or during the transfer ofevidence from Carson City
to McDermitt. See Doc. 61
46^8,57.
On October 6, 2017, shortly after the Internal Affairs Division issued the Serious Incident
Report, Knispel left his government-issued firearm unsecured in a restroom of a federal building.
Doc. 40-1 at 21. This building was accessible to other BIA employees, visitors, and members of
the public. Id. The firearm was discovered by another federal employee, Special Agent Pamell.
Doc. 50-2 at 11-12. Knispel admits he left his firearm in the restroom unsecured but argues his
reprimand was disproportionate. Id; Doc. 40-1 at 21.
B. Disciplinary Actions and EEO Contact
1. Employment Actions from 2017 to First EEO Complaint
After the WNA became aware ofthe missing evidence in Medina. Assistant Special Agent
in Charge (ASAC) Jamie Kootswatewa referred three matters to the Intemal Affairs Division
relating to Knispel for investigation: mishandling of evidence, disparaging remarks made to
subordinates, and leaving a building unsecured. Doc. 60-3 ^ 14. While under investigation,
Knispel was subject to several employment actions, including changes in his Employee
Performance Appraisal Plan, reassignment of duties, and placement on administrative leave.
Believing he was being treated differently because of his race and disability, Knispel contacted the
agency's Equal Employment Opportunity(EEC)department.
In October 2017, ASAC Kootswatewa, Knispel's first-line supervisor from summer of
2017 to November 2017 rated Knispel"minimally successful" on his 2017 Employee Performance
Appraisal Plan (EPAP). Doc. 79-2 at 3; Doc 49-3 at 2, 7. On April 23,2018, Clinton Funk was
designated as Plaintiff's direct supervisor with Special Agent in Charge(SAC)Laura Naranjo as
secondary supervisor. Doc. 61 K 12. Knispel then appealed his EPAP rating, and an amended
2017 EPAP was completed, adjusting his minimally successful rating to a fully successful rating
of 3.4. Doc. 81-4 at 7; Doc. 61 fl 122-23. Knispel's 2018 EPAP rating was "3.0 Fully
Successful." Doc. 81-4 at 7. Knispel did not receive a performance evaluation from his
supervisory team for the time he was employed in 2019 or 2020.^ Doc. 15 140; Doc. 16140.
On November 14, 2017, SAC Naranjo notified ASAC Selanhoongva McDonald that
Knispel was to be given a 120-day detail to the Uintah & Ouray Agency. Doc.61 f 107; Doc. 813 at 95. On June 25, 2018, ASAC Funk notified Knispel of another temporary duty assignment
with the Uintah & Ouray Adult Detention Facility for inmate management, prisoner transports,
medical and meal distribution, and control panel operation for thirty days. Doc.81-4 at 1-2. While
at this duty station, Knispel retained his grade, salary, and title of Chief of Police for WNA. Id
^ Secretary Haaland objects to this fact in its response to Knispel's statement ofmaterial facts.
Doc.611121. However, Secretary Haaland earlier admitted to this fact in the Secretary's Answer
to the Amended Complaint. See Doc. 16 40.
7
The notice stated the temporary assignment was based on "current staffing and operational needs
ofBIA OJS." Id. at 2. The notice also referenced the Internal Affairs Division's investigation into
"reported incidents of alleged misconduct for which disciplinary action may be proposed in the
future." li This temporary duty assignment was not to exceed 30 calendar days and was to
automatically expire on July 24,2018. Id. at 1. However,the assignment could be terminated or
extended at the "discretion of Agency management." Id
On July 13, 2018, Knispel emailed ASAC Funk about his reassignments, stating that the
reassignments, which required him to "operate a marked law enforcement vehicle" without his
"assigned duty weapons" placed him in danger and placed the government at risk ofliability. Doc.
81-3 at 79. ASAC Funk forwarded Knispel's concern to KnispeTs secondary supervisor SAC
Naranjo and stated:
I [(ASAC Funk)] have been provided directives that have placed myself at risk of
personal liability, including being directed to issue a directive to TDY[(Temporary
Duty Assignment)] Steven Knispel to transfer marked law enforcement vehicles for
OJS throughout the country without personal knowledge that he had his weapons
removed from his care without authorization for re-issuance.
Doc. 81-3 at 78. Funk's email expressed he no longer wished to supervise Knispel, citing the
"numerous historically adversarial supervisory situations." Id SAC Naranjo responded on July
16, 2018:
You are performing your duties in consultation with HR for their expertise. You
are following their guidance. Please continue doing so as you continue supervising
COP Knispel, and as you are with the other COP's under your supervision. All you
can do is take one matter or topic at a time and address it accordingly. As it appears
you have been doing correctly. In close dialogue with HR experts to ensure proper
procedures.
ASAC McDonald and I are parties to other EEC matters that COP Knispel has filed
prior to your arrival in District III in March 2018.
Id. at 80. Thus, ASAC Funk remained Knispel's supervisor.
On August 16, 2018, ASAC Funk, reassigned Knispel to the BIA OJS District I in
Aberdeen, South Dakota. This detail's duties included transporting Law Enforcement and
Corrections Government Ovmed Vehicles over long distances throughout the United States. Doc.
61 H 114. This reassignment would be KnispeTs final assignment before being issued a Notice of
Removal from Federal Service.
The record does not specify the exact date the decision to issue Knispel a Notice of
Removal was made.
However, emails between human resource officials and KnispeTs
supervisory team indicate that a decision was made in or prior to July 2018. On August 2, Barry
Farbor, a human resource specialist for the Office of Human Capital Management, emailed an
update regarding the draft ofthe Notice ofRemoval:
I have been attempting to devote most of my workdays during the last few weeks
to reviewing the LAD Reports of Investigation and drafting a Notice for the
proposed removal of COP Steven Knispel, and I am probably at least 60% finished
with the first draft ofthe Notice that will be forwarded to the Office ofthe Solicitor
as soon as I complete a final preliminary draft.
This removal action has been identified by OJS Director Addington as the current
#1 priority case file being handled by the Reston OHCM HR Staff.
Doc. 81-4 at 23.
On August 9,2018, Farbor sent an email to KnispeTs supervisory team:
COP Knispel must not receive a promotion to GS 1811-13 which would be very
detrimental to the pending removal action. It is recommended that the Agency
response to his inquiry should inform him that any promotion for which he might
be currently eligible will be deferred pending the outcome of the anticipated
proposal for an adverse persoimel action based on the completed IAD investigations
related to his several incidents of misconduct. I am working every day on his file
and drafting a lengthy and complex Notice letter for his proposed removal to be
forwarded to the Office of the Solicitor(SOL)for a legal sufficiency review. I am
hoping to send the first HR draft of the Notice letter to the SOL tomorrow (Friday
08/10/2018).
Doc. 81-4 at 6.
On December 6, 2018, ASAC Funk issued Knispel a Notice of Proposed Removal from
Federal Service(2018 Notice ofRemoval). Doc. 81-1 at 47-66. The Notice cited five charges:(1)
discourteous conduct; (2) careless or negligent performance of duty; (3) failure to safeguard
criminal evidence;(4)inability to perform full range of duties; and (5) disregard of a supervisory
directive. Id at 47. The Notice further provided: "Effective immediately, you are placed on paid
administrative leave during the 30-day notice period[,] and you are directed to surrender your
government-owned property and equipment and exit the federal work place." Id at 65 Knispel
was not allowed to report for work at BIA OJS unless "specifically approved or directed by[ASAC
Funk] or another supervisor in [his] chain of command." Id
Richard Melville was designated the deciding official concerning Knispel's removal. Doc,
61 H 82. At the time the 2018 Notice of Removal was issued, Melville was the Deputy Associate
Director for the Field Operations Division. Doc. 46 12. As Deputy Associate Director, Melville
was the direct supervisor of the Special Agents in Charge in WNA.
|
Id at 4. Knispel had the
opportunity to respond to the 2018 Notice ofRemoval,and Melville was to "give full consideration
to [Knispel's] reply and [issue] a written decision at the earliest practicable date afterward." Doc.
81-1 at 65. If Knispel elected not to reply, a written decision was to be issued "as soon as
practicable after expiration of the time allowed for a reply." Id The 2018 Notice of Removal
fiirther specified, "If sustained by the deciding official, the proposed action will not be effective
earlier than 30 calendar days from the date you receive this letter." Id at 65. Knispel never
received a written decision on the 2018 Notice ofRemoval but rather began a prolonged period on
administrative leave. Doc. 61 f 88.
2. Knispel's EEO Activity and 2018 EEO Complaint
10
On October 23,2017, Knispel made initial contact with the Agency EEO Office. Doc. 603 K 1; Doc. 79-2 at 2. In his request to speak to an EEO counselor, Knispel cited "a progressively
worsening work environment" within his district's OJS supervisory team. Doc. 79-2 at 8. His
supervisory team at that time included ASAC Selanhoongva McDonald, ASAC Jamie
Kootswatewa, and Special Agent in Charge (SAC) Laura Naranjo. Knispel's supervisory team
consisted of individuals who identified as Native American or part Native American.^ Knispel
met with an EEO Counselor on October 25,2017,to discuss the alleged issues. Id. at 2. According
to Knispel, October 25 was the same day Knispel learned ASAC Kootswatewa rated him
"minimally successful" on his 2017 EPAP. Doc. 79-2 at 3; Doc 49-3 at 2,7.
On December 12, 2017, Knispel participated in an initial interview with the EEO
Coimselor. Doc 49-3 at 3. The EEO Counselor sought to resolve KnispePs allegations to no avail.
Id. On February 9,2018, Knispel filed a formal complaint under Title VII and the Rehabilitation
Act. Id Knispel amended his complaint three times, and each amendment was accepted
respectively on May 22,2018, August 24,2018, and November 28,2018. Id
Knispel's allegations include being subjected to disparate treatment and/or a hostile work
environment on the bases ofrace, disability(PTSD),and/or reprisal for filing the complaint. Doc.
49-3 at 1. After incorporating the three amendments, Knispel's 2018 EEO Complaint contained
15 claims. The Office of Diversity, Inclusion arid Civil Rights, the body who issued the Final
Agency Decision, added sua sponte the sixteenth claim concerning the 2018 Notice of Proposed
Removal. Doc. 49-3 at 3 n.2. Those 16 claims were:
1. From Spring 2017 to present, the Assistant Special Agent in Charge
[Kootswatewa] and ASAC 2 [McDonald] continuously chastised, rebuffed.
^ Evidence Control Technicians Hernandez and Martin are also Native American, and Martin
became "Acting Chief ofPolice" during Knispel's absence from the position.
11
personally attacked, and threatened Complainant with reprimand, both verbally
and via email;
2. Between summer 2017 and October 25, 2018, [ASAC Kootswatewa] and
[ASAC McDonald]engaged in biased questioning and accused Complainant of
misconduct, which were accompanied by Internal Affairs(lA)investigations;
3. On October 25, 2017, [ASAC Kootswatewa] informed Complainant that
[ASAC Kootswatewa]rated Complainant Minimally Successful(2.0) on one of
Complainant's elements in Complainant's Fiscal Year (FY) 2017 Employee
Performance Appraisal Plan(EPAP);
4. In early November 2017,[ASAC McDonald] denied Complainant's request to
charge forty-five days of leave as part of an Office of Workers Compensation
Program (OWCP) claim to manage Complainant's PTSD. Complainant was
directed to charge his leave to his personal leave balance;
5. On December 8, 2017, [ASAC McDonald] issued a memorandum to
Complainant instructing Complainant to turn in his firearm, badge/credentials,
and other government issued equipment because he was on leave for more than
thirty consecutive days;
6. For an unspecified period in 2017,[ASAC McDonald] temporarily reassigned
Complainant from his position as Chief ofPolice to Agency Special Agent;
7. On unspecified dates in 2017,[ASAC Kootswatewa] and [ASAC McDonald],
despite the availability of funds, refused to approve purchase requests that
Complainant submitted for equipment necessary to fulfill Complainant's duties
as a supervisor;
8. On an unspecified date, Complainant learned that a Criminal Investigator made
a statement that it was wrong to hire Complainant because Complainant was
Caucasian and not Native American;
9. In May 2018, Complainant alleges ASAC 3 [Funk] discussed relocating
Complainant's and other employees' offices after [ASAC McDonald] and the
Agency Superintendent already negotiated an office space agreement;
10. In May 2018, in a conference call,[ASAC Fimk] advised Agency staff that
Complainant's designation as Custodial Property Officer (CPO) would be
terminated as of May 30, 2018;
11. In May 2018,the Supervisory Agent in Charge(SAC)implemented a restrictive
leave request and use memorandum for district supervisory staff, which
affected supervisory staffs ability to take leave, in order to affect
Complainant's ability to use annual leave when his sick leave balance is low
due to an extended illness that depleted Complainant's leave balance;
12.In May 2018, acting supervisory personnel within the Agency were used to
initiate an inquiry into an unpaid invoice for the purchase of cell phone boosters
for three Agency vehicles in an attempt by the Acting ChiefofPolice to initiate
an unauthorized purchase and ratification action against Complainant;
13. On August 6, 2018,[ASAC McDonald] informed Complainant that he would
be raising his FY 2017 EPAP from Minimally Successfol to Fully Successful,
but then subsequently informed Complainant that his EPAP was on hold
pending lA investigations;
12
14. On August 15, 2018, the Lieutenant initiated an email concerning a discussion
with Complainant on the possible loss of a government wireless device at the
Phoenix Airport;
15. On August 16, 2018,[ASAC Funk] reassigned Complainant to District I to
transport law enforcement vehicles; and
16. On December 6,2018, Complainant received a Notice ofProposed Removal.
Idatl-3.s
The Agency conducted a formal investigation ofKnispel's claims ftom July 2018 to March
2019. Id In April 2019, the Agency issued its Report of Investigation; however, the Agency
determined that the report was insufficient and remanded it for a supplemental investigation. Id
The Agency conducted a supplemental investigation and issued its Supplemental Report of
Investigation in April 2021. Id; Doc. 49-16 at 4-7. Both the Report of Investigation and the
Supplemental Report of Investigation described the dates of the alleged discrimination as
"December 28,2017- ongoing." Doc. 81-1 at 2; Doc. 49-16 at 5.
On May 26, 2021, the Office of Diversity, Inclusion and Civil Rights issued the Final
Agency Decision finding that Knispel failed to prove that he was subjected to disparate treatment
and/or harassment on the bases of race, reprisal, or disability. The Final Agency Decision
contained notice of the right to file a civil action in U.S. District Court as set forth in 29 C.F.R.
§ 1614.110.
3. Employment Actions After 2018 EEC Complaint
^ The Final Agency Decision, Doc. 49-3, states that Knispel's claims of reprisal are "only in
connection with incidents occurring after May 2018." Id at 1 n.l. The Final Agency Decision
did not include claim 16 in its discussion on reprisal even though the claim occurred after May
2018. Id at 1 n.l., 32. This Court also notes that the Final Ageney Decision restates claim 15 as
the claim 16 heading in the statement of facts and discussion sections. Id at 15, 31 ("16. On
August 16, 2018, RMO 3 reassigned Complainant to District 1 to transport law enforcement
vehicles."). However, the body of both sections discusses Knispel's December 2018 "proposed
termination." Id Thus, the Office of Diversity, Inclusion and Civil Rights had sufficient
opportunity to investigate and address claim 16.
13
Because the 2018 Notice of Removal was not acted upon, Knispel remained on
administrative leave through 2020. Doc. 61 H 88. The parties dispute whether placement on
administrative leave for two years was a departure from applicable OJS policy and procedure.
Doc. 61 at TI 89. Department of the Interior Office of Human Resources policy concerning
employee discipline states, "The placement of an employee on administrative leave does not
constitute an adverse action, but should only be done in the most exceptional situations (i.e., cases
involving proposed removals or indefinite suspensions), when all other options are considered
imprudent." Doc. 68-2 at 13. The policy further states:
Only bureau/office heads, their deputies, or the Director, OHR,may authorize the
placement of an employee on administrative leave for an extended period of time
(i.e., beyond 45 days); this authority may not be re-delegated. Bureau/Office heads
(or their deputies) must coordinate decisions regarding the placement/continuation
of an employee in an administrative leave status for more than 45 days with the
Director, OHR,who will review such decisions for the Department and may rescind
them if considered inappropriate.
Id. KnispeTs time on administrative leave apparently was extended at least two times. Doc. 81-3
at 92. However, nothing in the record indicates that the timeframe for the deciding official to act
on the 2018 Notice of Removal was extended.
On March 10, 2020, Melville issued Knispel a Rescission of Proposal to Rernove, which
revoked the 2018 Notice of Removal "due to the passage oftime, as well as administrative issues
surrounding this matter." Doc. 70-8. That same day, Melville issued Knispel a second Notice of
Removal. Doc. 46-1. In his deposition, Melville was unable recall why he was asked to reissue
the proposed removal of Knispel, Doc. 46 H 14, nor could he recall what the administrative issues
were surrounding Knispel's proposed removal. Doc.61 H 85.
The 2020 Notice ofRemoval contained six charges:(1)Mishandling ofCriminal Evidence;
(2)Careless or Negligent Performance ofDuty;(3)Conduct Unbecoming a Supervisor;(4)Failure
14
to Safeguard Criminal Evidence;(5) Failure to Safeguard a Government Facility; and (6)Failure
to Safeguard Your Government Firearm. Doc. 46-1 at 1. The first five charges contain the same
factual bases as the charges articulated in 2018 Notice ofRemoval. Id.: Doc.81-1 at 47. The sixth
charge had previously been incorporated in the 2018 Notice of Removal as Specification D of
Charge 2"Careless or Negligent Performance of Duty." Doc.46-1 at l;Doc. 81-1 at 55.
The deciding official for the 2020 Notice ofRemoval was Timothy LaPointe,the Regional
Director of the Great Plains Region for the BIA. Doc. 46-1 at 18. On November 30, 2020,
LaPointe issued a Decision to Remove,effectively terminating Knispel from federal employment.
Doc. 50 K 7; Doc. 50-2. LaPointe's Decision ofRemoval sustained all six charges from the Notice
ofRemoval,finding each charge was "fully supported by the record." Doc.50-2 at 14-17. Knispel
was not removed on December 1, 2020, following the Decision to Remove. Rather, Knispel
remained on paid administrative leave until effectuation ofhis mandatory retirement on December
31,2020. Doc. 60-3 at 172; Doc.61 H 153-156.
4. 2021 EEO Complaint
Knispel made initial contact with the EEO Counselor a second time on December 31,2020,
after receiving the 2020 Notice ofProposed Removal. Doc. 49-1 at 1. He filed a formal complaint
in February 2021 alleging instances of reprisal for his 2018 complaint. Doc. 69-6. The Agency
ordered a formal investigation on May 19, 2021, and the investigation lasted through August 10,
2021. Id at 2. The Office of Diversity, Inclusion and Civil Rights then issued a Final Agency
Decision, addressing two claims based on reprisal for prior EEO activity concerning Knispel's
2018 complaint:
1. On December 1,2020, Complainant was issued a second Letter of Proposal to
Remove from Federal Service; and
2. Complainant retired from the Federal government after management officials
failed to provide pertinent investigation and retirement information he
15
requested to address the Letter ofProposal to Remove him for Federal Service,
resulting in constructive discharge.
Id. at 1-2. The Final Agency Decision on May 11, 2022, again found that Knispel failed to prove
his claims and notified Knispel of the right to file a civil action in U.S. District Court as set forth
in 29 C.F.R. §1614.110.
On August 25, 2021, following receipt of the Final Agency Decision regarding his 2018
EEC Complaint, Knispel filed this lawsuit. Doc. 1. Knispel then filed an Amended Complaint,
Doc. 15, on March 23, 2022, while review of his 2021 EEC Complaint remained ongoing.
II.
Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "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). On summary judgment, the
evidence is "viewed in the light most favorable to the nonmoving party." True v. Nebraska. 612
F.Sd 676, 679 (8th Cir. 2010)(quoting Cordrv v. Vanderbilt Mots. & Fin.. Inc.. 445 F.3d 1106,
1109(8th Cir. 2006)). There is a genuine issue of material fact if a"reasonable jury [could]return
a verdict for either party" on a particular issue. Maver v. Countrvwide Home Loans. 647 F.3d
789, 791 (8th Cir. 2011). A party opposing a properly made and supported motion for summary
judgment must cite to particular materials in the record supporting the assertion that a fact is
genuinely disputed. Fed. R. Civ. P. 56(c)(1); Gacek v. Owens & Minor Distrib.. Inc., 666 F.3d
1142, 1145 (8th Cir. 2012). "Mere allegations, unsupported by specific facts or evidence beyond
the nonmoving party's own conclusions, are insufficient to withstand a motion for summary
judgment." Thomas v. Corwin,483 F.3d 516, 527(8th Cir. 2007). Cases alleging discrimination
are subject to the same summary judgment standard as any other case. Toreerson v. Citv of
Rochester. 643 F.3d 1031, 1043 (8th Cir. 2011)(en banc).
16
When, as here, the parties file cross-motions for summary judgment, each party's motion
must be evaluated independently in accordance with the standard weight of evidence accorded to
the nonmoving party to determine if there is any genuine issue of material fact.
Wermager v.
Cormorant Twn. Bd..716 F.2d 1211,1214(8th Cir. 19831: see also St. Luke's Methodist Hosp. v.
Thompson, 182 F. Supp. 2d 765, 769(N.D. Iowa 2001).
III.
Discussion
A. Administrative Exhaustion
A federal employee alleging discrimination and retaliation prohibited by Title VII and the
Rehabilitation Act "must initiate contact with [an EEO] Coimselor within 45 days of the date of
the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the
effective date ofthe action." 29 C.F.R. § 1614.105(a)(1). The 45-day time limit is extended ifthe
aggrieved employee is able to show that he or she was not notified ofthe time limits and was not
otherwise aware ofthem, that he or she was unaware the personnel action occurred, or that he or
she was prevented by circumstances beyond his or her control from complying ^vith the deadline.
Id § 1614.105(a)(2). Bailev v. U.S. Postal Serv.. 208 F.3d 652,654(8th Cir. 2000). The United
States Court of Appeals for the Eighth Circuit has recognized that "[ejxhaustion of administrative
remedies is central to Title VII's statutory scheme because it provides the EEOC the first
opportunity to investigate discriminatory practices and enables it to perform its roles of obtaining
voluntary compliance and promoting conciliatory efforts." Williams v. Little Rock Mun. Water
Works. 21 F.3d 218,222(8th Cir. 1994). Administrative exhaustion is a "processing rule," not a
"jurisdictional prescription." Fort Bend Cntv. v. Davis. 587 U.S. 541, 551 (2019). Where the
failure to exhaust defense is raised, a district court must"undertake the necessary detailed analysis
17
of what claims were fairly included in [the] informal and formal administrative complaints."
Patrick V. Henderson.255 F.3d 914,916 (8th Cir. 2001).
The Supreme Court ofthe United States, in National Railroad Passenger Corp. v. Morgan.
536 U.S. 101, 112 (2002), addressed what constitutes the timely filing of Title VII claims and
clarified the continuing violation doctrine. Under Morgan, a "plaintiff raising claims of discrete
discriminatory or retaliatory acts must file his charge within the appropriate time period," while a
charge alleging hostile environment will not be time barred "so long as all acts which constitute
the claim are part of the same unlawful employment practice and at least one act falls within the
time period." Id at 122.
The Secretary contends that several claims alleged in Knispel's Amended Complaint
should be barred for failure to exhaust. Doc. 52 at 11-17. As noted in the Secretary's supporting
memorandum, the Amended Complaint does not clearly delineate which factual allegations
correspond with which claim. Id at 16 n.2. For example, Knispel uses the same factual allegations
to support his disparate treatment and hostile work environment claims. Doc. 15 at 9-11. To
address whether Knispel's claims have been exhausted, this Court must distinguish alleged"discrete discriminatory or retaliatory acts" from acts allegedly contributing to a hostile work
environment. Morgan. 536 U.S. at 122.
1. Alleged Discrete Acts of Discrimination or Retaliation
Knispel's Amended Complaint, Doc. 15, alleges nine discrete discriminatory or retaliatory
acts: (1) ASAC Kootswatewa rated Knispel "Minimally Successful" on his EPAP, id ^ 24;(2)
ASAC McDonald denied Knispel's request to charge 45 days of leave as part of an Office of
Workers Compensation Program, id K 25;(3) ASAC McDonald temporarily reassigned Knispel
to Agency Special Agent, id ^ 27;(4) ASAC Funk reassigned Knispel to the position of "law
18
enforcement vehicle transporter" in a different district, id. 1 35;(5) Knispel was issued the 2018
Notice ofProposed Removal,id.^ 37;(6)Knispel was denied apromotion and yearly step increase
which would have allowed retirement as a GS13 Step 03, id ^ 39;(7) Knispel was placed on
administrative leave from December 2018 until his retirement on December 31, 2020, id UK 41,
86; (8) Knispel was issued the 2020 Notice of Proposed Removal, id K 38; (9) Knispel was
constructively discharged,id Kt 82-88.
The Secretary argues Knispel failed to timely exhaust the first seven ofthe above discrete
acts—^paragraphs 24, 25, 27, 35, 37, 39, and 41 of the Amended Complaint Doc. 52 at 16-19,
34—37. The Secretary views these claims as not exhausted because, despite being accepted for
investigation and addressed in the Final Agency Decision, they occurred after Knispel's initial
contact with the agency EEO Office on October 23, 2017, and Knispel did not contact the EEO
Counselor again for each claim within 45 days ofthe alleged subsequent acts of discrimination or
retaliation under 29 C.F.R. § 1614.105(a)(1). Id at 16, 18. The Secretary's interpretation ofthe
45-day contact requirement is too restrictive.
Section 1614.105(b)(1) instructs that EEO
Counselors must advise individuals "that only the claims raised in precomplaint counseling (or
issues or claims like or related to issues or claims raised in pre-complaint counseling) may be
alleged in a subsequent complaint filed with the agency." 29 C.F.R. § 1614.105(b)(1)(emphasis
added). Thus, the 45-day contact requirement does not prohibit a complainant from raising issues
or claims of discrimination or retaliation that occur between a complainant's initial contact with
the EEO office and his initial counseling. Further, the complainant may properly exhaust any
claims "like or related to issues or claims raised in pre-complaint counseling," by raising them in
the agency complaint without the need to reinitiate contact with the agency EEO Office. Id;^
19
also Wedow v. City of Kansas City, 442 F.3d 661, 675 (8th Cir. 2006)("[W]e have not wholly
abandoned the theory that reasonably related subsequent acts may be considered exhausted.").
Knispel made initial contact with the agency EEO Office on October 23, 2017, but his
precomplaint counseling did not occur until December 12, 2017.^ Doc. 69-5. Knispel timely
could allege discrete acts of discrimination and retaliation occurring from September 8,2017(45
days before his initial contact)to December 12, 2017,in his administrative complaint. Therefore,
the following claims in KnispeTs Amended Complaint have been timely exhausted because they
occurred after initial contact and before his precomplaint counseling and were raised in KnispeTs
2018 EEO Complaint:
Paragraph 24: October 25, 2017, ASAC Kootswatewa rated Knispel "Minimally
Successful" on his annual EPAP. Doc. 15 T[ 24; see also Doc. 49-5 13.
Paragraph 25: November 2017, ASAC McDonald denied KnispeTs request to
charge forty-five days of leave as part of an Office of Workers
Compensation Program claim to manage KnispeTs Post Traumatic Stress
Disorder. Doc. 15 K 25; see also Doc.49-5 K 4.
Paragraph 27: For an unspecified period in 2017,Assistant Special Agent in Charge
#2 McDonald temporarily reassigned Knispel from his position as Chief of
Police to that of Agency Special Agent. Doc. 15 ^ 27; see also Doc. 49-5
^6; Doc. 61 H 107 (Secretary's admission that SAC Naranjo ordered
Knispel was to be given a 120-day detail to the Uintah and Ouray Agency
in November of2017).
The claims alleged in paragraphs 35 and 37 ofthe Amended Complaint differ in that they
occurred after Knispel filed his 2018 EEO Complaint. Paragraph 35 alleges,"On August 16,2018,
[ASAC Funk] reassigned Knispel to the position of Taw enforcement vehicle transporter' in a
different district," and paragraph 37 alleges,"On December 6,2018,Knispel received aNotice of
^ The Agency's Notice of Final Interview and Right to File a Discrimination Complaint states that
the counseling interview occurred on December 11, 2017. See Doc. 69-4 at 1. For purposes of
this Opinion and Order, this Court uses December 12, the date found in the Counselor's Report,
Doc. 69-5.
20
Proposed Removal from service. Doc. 15
35, 37. Again, the Secretary argues these discrete
acts have not been exhausted because they "occurred after Knispel's initial visit with the EEO
Counselor on October 23, 2017." Doc. 52 at 18. However, "[a] complainant may amend a
complaint at any time prior to the conclusion of the investigation to include issues or claims like
or related to those raised in the complaint." 29 C.F.R. § 1614.106(d). Knispel amended his 2018
EEO complaint on August 24,2018,to include ASAC Funk reassigning him to transport vehicles
in a different district. S^ Doc.49-6 at 2. The Agency added Knispel's 2018 Notice of Removal
sua sponte during its investigation. Doc. 49-3 at 3 n.2. After finding both claims were "like or
related to those claims raised in the complaint," the Agency accepted both claims prior to the
conclusion ofits investigation and issuance ofthe Final Agency Decision. See id.
15-16.^®
This Court likewise finds these two claims are related to those claims Knispel raised in his
2018 EEO complaint and were properly amended under § 1614.106(d). Paragraph 35 of the
amended complaint, which corresponds with claim 15 in Knispel's 2018 EEO complaint, alleges
another temporary assignment was issued due to discrimination or retaliation. Viewed in the light
most favorable to Knispel, this claim alleges the same conduct as a paragraph 27: Knispel was
unlawfully reassigned to a new district and relegated to an inferior position ?within the BIA based
upon discrimination and retaliation. Paragraph 37 of the amended complaint, which corresponds
?with claim 16 in Knispel's 2018 EEO complaint, is related to claims 2 and 5 in the EEO complaint
because it is the culmination of the Internal Affairs investigation that Knispel alleged to be
29 C.F.R. § 1614.105(a)(2) states the 45-day deadline may be excused "for other reasons
considered sufficient by the agency or the Commission." The agency's decision to add Knispel's
2018 Notice of Removal to the claims during its investigation obviates the requirement that
Knispel contact the agency ?within the 45-day deadline and amend his own complaint to include it
as part of his claims.
21
discriminatory. 49-3 fl 2, 5. Further, the 45-day contact requirement may be excused "for other
reasons considered sufficient by the agency or the Commission." 29 C.F.R. § 1614.105(a)(2).
Here, the agency found it unnecessary for Knispel to amend the complaint himself because the
Notice for Removal was issued amid their investigation. The agency added the claim,investigated
it, and issued a ruling on it. Thus, paragraph 37 has been properly exhausted.
Finally, the Secretary asserts that Knispel failed to exhaust paragraphs 39 and 41 of the
Amended Complaint because the claims are "not provided for as part ofEEO investigation." Doc.
52 at 37. The paragraphs allege:
39. Despite eventually receiving satisfactory Employee Performance Appraisal
Plan reviews for 2017 and 2018, Knispel was denied his customary noncompetitive promotion and yearly step increase which would have allowed
retirement as a GS13 Step 03.
41. Knispel was placed on paid administrative leave with Law Enforcement
Availability Pay from December 2018 until his retirement on December 31, 2020.
This is a direct violation of Department of the Interior, Bureau of Indian Affairs
policies and procedures.
Doc. 15 fl 39,41.
"A Title VII plaintiff must file [an administrative] charge . .. before bringing a civil suit,
but the scope of the subsequent action is not necessarily limited to the specific allegations in the
charge." Nichols v. Am. NatT. Ins. Co., 154 F.3d 875, 886 (8th Cir. 1998). The United States
Court of Appeals for the Eighth Circuit does "not require that subsequently-filed lawsuits mirror
the administrative charges." Duncan v. Delta Consol. Indus.. Inc.. 371 F.3d 1020, 1025 (8th Cir.
2004),abrogated on other grounds by Torgerson.643 F.3d 1031. However,the subsequentjudicial
complaint may not be broader than "the scope of the EEOC investigation which could reasonably
be expected to grow out ofthe charge." Id (cleaned up and citation omitted).
22
In Wedow v. Kansas City, the Eighth Circuit distinguished the Supreme Court's holding
in Morgan, where the alleged discriminatory employment action occurred prior to the
administrative charge, from discrete acts that occm after a timely filed EEOC charge. 442 F.3d at
673-74("Unlike allegations ofa discrete act of discrimination that occurred in the past and outside
ofthe limitations period or that occurred subsequently but were unrelated to the scope ofthe EEOC
charges,... the charges filed in this case spoke of acts occurring in the present and specifically
alleged future implications as well."). Subsequent acts may be considered exhausted "where the
subsequent [discrete] acts were of a like kind to the [discrete] acts alleged in the EEOC charge,
which were specified to be of an ongoing and continuing nature." Id at 674; see also Ringhofer
V. Mayo Clinic. Ambulance. 102 F.4th 894, 898 (8th Cir. 2024)(holding employees properly
exhausted their unlawful termination claims when termination occurred after filing an
administrative charge alleging the employer's vaccination policy, which allowed for employee
termination, failed to accommodate their religious beliefs.)
Failure to promote and placement on administrative leave are reasonably related to
Knispel's administrative charge. Knispel's 2018 EEO complaint alleged ongoing and continuing
discrimination. Doc. 81-1 at 2. Both his administrative charge and his civil complaint allege that
following revelation of the missing evidence in Medina. Knispel became the agency scapegoat
because of his race. Specifically, Knispel alleges that he was placed under investigation and
received a lower EPAP rating. Knispel then alleges that despite receiving a revised EPAP rating,
he was issued a Notice of Removal, which stated he would be placed on administrative leave for
30 days. Doc. 81-1 at 47. And while the Agency was preparing the Notice of Removal, a human
resources officer stated,"COP Knispel must not receive a promotion to GS 1811-13 which would
be very detrimental to the pending removal action." Doc. 81-4 at 6. Thus, placement on
23
administrative leave and failure to promote to GS-13 were concomitant to the Notice of Removal
and were within the scope of Knispel's administrative charge.
In sum, Knispel exhausted each claim alleging discrete acts of discrimination and
retaliation, including a minimally successful EPAP rating, denial ofleave,two reassignments, the
2018 Notice of Removal, failure to promote, placement on administrative leave, the 2020 Notice
of Removal, and constructive discharge.
2. Acts Alleged to Contribute to a Hostile Work Environment
A charge alleging hostile work environment will not be time barred "so long as all acts
which constitute the claim are part ofthe same unlawful employment practice and at least one act
falls within the time period." Morgan. 536 U.S. at 122. "This determination requires that [this
Court] consider[s] 'whether the acts about which an employee complains are part of the same
actionable hostile work environment practice, and if so, whether any act falls within the statutory
time period.'" Rowe v. Hussmann Corp.. 381 F.3d 775,779(8th Cir. 2004)rquoting Morgan.536
U.S. at 120). Acts that are "so similar in nature, frequency, and severity must be considered to be
part and parcel of the hostile work environment that constituted the unlawful employment
practice." Wilkie v. Dep't of Health & Hum. Servs.. 638 F.3d 944, 951 (8th Cir. 2011)(cleaned
up and citation omitted).
The Secretary argues paragraph 21 ofKnispel's Amended Complaint is barred to the extent
that it includes allegations involving supervisors who were not included in Knispel's 2018 EEO
complaint.
Knispel's civil complaint alleges SAC Naranjo, ASAC Kootswatewa, ASAC
McDonald,and ASAC Funk "chastised,rebuffed,personally attacked,and threatened Knispel with
reprimand, both verbally and via email." Doc. 15 ^ 21. The first claim in Knispel's 2018 EEO
complaint contains the same allegation but does not include either SAC Naranjo or ASAC Funk's
24
names. Doc. 49-3 at 1. The harassment Knispel alleges is essentially the same conduct for all
supervisors: falsely accusing Knispel of misconduct, initiating investigations against Knispel, and
disciplining Knispel disproportionately. Again, KnispeTs administrative charge alleged ongoing
discrimination. ASAC Funk became Knispel's direct supervisor and SAC Naranjo became
Knispel's secondary supervisor on April 23, 2018, which was after the administrative complaint
was filed but before the investigation was completed. Doc. 61 H 12. Because Knispel alleged
ongoing discrimination in his administrative complaint and because the acts concerning ASAC
Funk and SAC Naranjo were subsequent to his administrative complaint and ofthe same nature as
the allegations in his administrative complaint, the claims are "part of the same actionable hostile
work environment practice" and are thus exhausted.
B. Disparate Treatment Based on Race
Title VII prohibits the federal government from discriminating against its employees and
those seeking employment based on race, color, religion, sex, or national origin. 42 U.S.C.
§ 2000e-16. Because Knispel has not presented direct evidence to support his Title VII claims,
this Court applies the burden-shifting framework established in McDonnell Douglas Corp. v.
Green. 411 U.S. 792, 793 (1973).^' Under the framework, the plaintiff has the initial burden to
establish a prima facie case of discrimination, creating a rebuttable presumption of discrimination.
Watson V. McDonough.996 F.3d 850,854(8th Cir. 2021). The burden then shifts to the defendant
to produce a legitimate, nondiscriminatory reason for the adverse action of which the plaintiff
Both the Secretary and Knispel move for summary judgment on this claim. Knispel relies on
the McDonnell Douglas framework to create an inference of discrimination. Doc. 40. The
Secretary's proffered nondiscriminatory reason raises a genuine issue of fact, making a grant of
summary judgment in favor of Knispel inappropriate from the outset. This section primarily
addresses Knispel's opposition to the Secretary's Motion for Summary Judgment, Doc. 41, and
views the facts in the light most favorable to Knispel.
25
complains. Id If the defendant does so, the burden shifts back to the plaintilf to establish the
"legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination." Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133, 143 (2000). "[T]he
trier of fact may still consider the evidence establishing the plaintiffs prima facie case 'and
inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is
pretextual.'" Id (quoting Tx Dep't of Cmtv. Affs. v. Burdine. 450 U.S. 248, 255 n.lO (1981).
Notwithstanding the burden-shifting nature of the McDonnell Douglas framework, the ultimate
burden of proving unlawful discrimination remains with the plaintiff. St. Mary's Honor Ctr. v.
Hicks. 509 U.S. 502,506-07(1993).
1. Prima Facie Case
To establish a prima facie case of race discrimination, Knispel must demonstrate that "(1)
he is a member of a protected class,(2) he met his employer's legitimate expectations, (3) he
suffered an adverse employment action, and (4) the circumstances give rise to an inference of
discrimination." Macklin v. FMC Transn.. Inc.. 815 F.3d 425, 427 (8th Cir. 2016) (citation
omitted). Because Knispel is white and alleges reverse discrimination, he must also show the BIA
to be "the unusual employer who discriminates against the majority" to establish the first prong of
his prima facie case. McGinnis v. Union Pac. R.R.. 496 F.3d 868, 875 (8th Cir. 2007).
The "threshold of proof necessary to make a prima facie case is minimal." Rose-Maston
v. NME Hosps.. Inc.. 133 F.3d 1104, 1109-10 (8th Cir. 1998). The Secretary "assumes that
Knispel could make the nominal showing required for the first prong of the prima facie case with
respect to this specific claim" and "will concede prong two is met." Doc. 52 at 23. The parties
dispute, however, whether each ofKnispel's claims constitutes an adverse employment action and
whether the circumstances give rise to an inference of discrimination.
26
"Title VII's federal-sector provision contains a broad prohibition of'discrimination,' rather
than a list of specific prohibited practices." Gomez-Perez v. Potter. 553 U.S. 474, 487 (2008)
(citing 42 U.S.C. § 2000e-16). "An adverse employment action is a disadvantageous change to
the compensation,terms,conditions, or privileges ofemployment." Cole v. Grp.Health Plan. Inc..
105 F.4th 1110, 1114 (8th Cir. 2024). Adverse employment actions include, but are not limited
to, "termination, cuts in pay or benefits, and changes that affect an employe's future career
prospects, as well as circumstances amounting to a constructive discharge." Jones v. Citv of St.
Louis. 825 F.3d 476,480(8th Cir. 2016)(citation omitted). In Muldrow v. Citv of St. Louis. 601
U.S. 346 (2024), the Supreme Court nullified the Eighth Circuit's longstanding requirement that
the claimed injury be significant, material, or serious. Cole. 105 F.4th at 1114 (citing Muldrow.
601 U.S. at 356 n.2).
As mentioned above, Knispel exhausted nine claims alleging discrete employment acts of
discrimination,including a minimally successful EPAP rating, denial ofleave,two reassignments,
the 2018 Notice ofProposed Removal, failure to promote, placement on administrative leave, the
2020 Notice ofProposed Removal, and constructive discharge.^^ The Secretary contends that the
lowered EPAP rating, the 2018 and 2020 Notices of Removal, and Knispel's placement on
administrative leave do not constitute an adverse employment action.
An unfavorable evaluation alone is not an adverse employment action but may be
actionable "where the employer subsequently uses the evaluation as a basis to detrimentally alter
The Secretary addresses Knispel's allegations regarding "targeted investigations and threats of
investigations," but Knispel does not appear to allege that the investigations themselves constituted
an adverse employment action but that the resulting reassignments, notices of removal, and
placement on administrative leave were adverse employment actions. See, e.g.. Altonen v. City
nf Minneapnlis, 487 F.3d 554, 560 (8th Cir. 2007) (distinguishing the investigation from
"disciplinary action...related to the investigation.").
27
the terms or conditions of the recipient's employment." Spears v. Mo. Dep't of Corr. & Hum.
Res.. 210 F.3d 850, 854(8th Cir. 2000). Knispel received a "minimally successful" EPAP rating
in October of 2017. Knispel's "minimally successful" rating was later amended to a fully
successful rating "on or about August 14, 2018." Doc. 81-4 at 7; Doc. 61 at
122, 123. The
Secretary contends Knispel's negative rating is not actionable because it was"cured before he filed
his complaint" through the amendment. Doc. 52 at 21 (citing Tavlor v. Small. 350 F.3d 1286,
1294 (D.C. Cir. 2003)). However, Knispel was issued two temporary duty reassignments before
his 2017 EPAP was amended to a "fully successful" rating. His first reassignment to the Uintah
& Ouray Agency was ordered in November 2017,less than a month after his rating was lowered.
His second reassignment began in June 2018, shortly after the expiration of his first reassignment
and two months before the EPAP was amended. The Secretary concedes both reassignments are
adverse employment actions. See Doc.52 at 27. Further, Knispel's Leave and Earning Statements
(EES), Doc. 42-1, show that he remained the same pay grade and step, GS-12-03,from January
2018 through February 2021, meaning he did not receive an automatic step increase based upon
time in grade after his EPAP rating was lowered. Knispel's "ineligibility for an automatic step
salary increase based on time in grade... qualifies the performance rating downgrade as an adverse
employment action." Turner v. Gonzales. 421 F.3d 688, 696 (8th Cir. 2005); see also 5 C.F.R. §
532.417 ("An employee paid under a regular Federal Wage System schedule with a work
performance rating of satisfactory or better shall advance automatically to the next higher step
within the grade
"). Thus,this Court considers Knispel's "minimally successful"EPAP rating
an adverse employment action to the extent it may have contributed to the two reassignments and
precluded him from an automatic step increase.
28
Similarly, the Secretary argues the 2018 and 2020 Notices ofRemoval and accompanying
placement on administrative leave were not adverse employment actions because Knispel was
paid, retained his position, and ultimately retired and was not removed from federal service. Doc.
52 at 20-21. An employee placed on administrative leave pending an investigation who
"maintain[s] his pay, grade, and benefits" and who is "promptly returned to his original position"
generally does not suffer an adverse action. Singletarv v. Mo. Den't of Corr.. 423 F.3d 886, 891
(8th Cir. 2005). Here, however,the Notices ofRemoval amounted to "disadvantageous change[s]
to the compensation, terms, conditions, or privileges of employment." Cole. 105 F.4th at 1114.
Knispel was not"promptly returned to his original position." Singletarv. 423 F.3d at 891. Instead,
he remained on administrative leave for two years. During those two years,Knispel did not receive
any automatic step increases. Doc.42-1. The parties dispute whether the Notices ofRemoval also
precluded Knispel from obtaining any promotion he might have otherwise been eligible to receive.
Knispel must make a "showing that [he] would have gotten a promotion absent the [employment
action]." Turner. 421 F.3d at 696. Knispel proffered correspondence from a human resources
officer to Knispel's supervisors instructing them to suspend any promotions. Doc.81-4 at6("COP
Knispel must not receive a promotion to GS 1811-13 ...[A]ny promotion for which he might be
currently eligible will be deferred pending the outcome of[the removal action]."). Viewed in the
light most favorable to Knispel, the Notices of Removal and accompanying administrative leave
"inflict[ed] direct economic harm," Burlington Indus.. Inc. v. Ellerth. 524 U.S. 742, 762(1998),
because he did not receive a step increase and was barred from promotion. The fact that Knispel
retained his pay while on leave does not necessarily mean the Notices ofRemoval were not adverse
actions; instead, that matters to what damage he may have suffered. See, e.g.. Ezell v. Potter. 400
29
F.3d 1041,1049(7th Cir. 2005)("[Plaintiffs] damages may be relatively modest but the Removal
Letter constituted an adverse employment action.").
Finally, to establish a prima facie case, Knispel must demonstrate that "the circumstances
give rise to an inference of discrimination." Macklin.815 F.3dat427. "The required prima facie
showing is a flexible evidentiary standard, and a plaintiff can satisfy the fourth part of the prima
facie case in a variety of ways ...." Pve v. Nu Aire. Inc.. 641 F.3d 1011, 1019 (8th Cir. 2011)
(cleaned up and citation omitted). A plaintiff might offer evidence of more favorable treatment of
similarly situated employees outside the protected class,"biased comments by a decisionmaker,"
or "pretext with evidence that an employer 'failed to follow its own policies' or 'shifted its
explanation ofthe employment decision.'" Grant v. Citv of Blvtheville. 841 F.3d 767, 774 (8th
Cir. 2016)(quoting Young v. Builders Steel Co.. 754 F.3d 573, 578 (8th Cir. 2014)). Knispel
argues the circumstances give rise to an inference of discrimination because he "was treated less
favorably than similarly situated employees" and because the BIA failed to follow its own policies.
Doc. 40-1 at 8, 11-12.
"To establish that a similarly situated employee not in his protected class was treated more
favorably," Knispel is "required to identify an employee who was 'similarly situated in all relevant
respects.'" Grant. 841 F.3d at 774(quoting Young.754 F.3d at 578). Knispel is unable to identify
such an employee. He points to the fact that Hernandez and Martin, both of whom are Native
American, were not disciplined in the same manner despite having also handled the missing
evidence in the Medina ease. Doc. 40-1 at 9-10. Hernandez and Martin were evidence control
technicians, and Knispel outranked them and supervised them in their duties. Doc. 60-3 127;Doc.
81-1 at 28-29. Knispel was the only Chief of Police in the WNA, and he was "responsible for
directly supervising and conducting investigations into major criminal cases." Doc. 81-1 at 28.
30
As Chief of Police for the WNA,Knispel was essentially in a class of one. Perhaps recognizing
this dilemma, Knispel points to the fact that Martin was elevated to the position of Acting Chief
of Police while Knispel was on administrative leave.
Doc. 61 ^ 63. However, Martin still
does not qualify as a similarly situated employee because Martin "necessarily [held that] position
after the decision at issue." Williams v. United Parcel Serv.. Inc.. 963 F.3d 803, 809 (8th Cir.
2020)(holding a district manager's successor was not a similarly situated employee). Finally,
Knispel points to ASAC Kootswatewa, who acted as Chief ofPolice for the Hopi Agency in 2014.
Doc. 40-1 at 8-9. Knispel proffers evidence showing that while Kootswatewa was Chief ofPolice
for the Hopi Agency,a Corrective Action Support Team(CAST)was designated to assess agency
operations and to correct deficiencies. Doc. 81-4 at 8-10. The CAST identified several
deficiencies with the agency's handling of evidence. The number of official evidence control
rooms was unclear, evidence in one of the control rooms was wet, and a total of 134 items were
found to be missing, including money, a firearm, drugs, and alcohol. Id at 10. Still, "the
individuals used for comparison must have dealt with the same supervisor, have been subject to
the same standards, and engaged in the same conduct without any mitigating or distinguishing
circumstances." Clark v. Runvon. 218 F.3d 915, 918 (8th Cir. 2000). Kootswatewa, despite
holding the same position as Knispel in another agency, did not have the same supervisors as
Knispel, nor did the evidence control problems at the Hopi Agency result in the dismissal of a
murder charge. Knispel's conduct is further distinguished because he had also left his fhearm
unsecured and allegedly left a building unsecured. Because Knispel is unable to establish a
similarly situated employee, he must rely on other evidence to satisfy the fourth and final element.
Knispel next argues the BIA failed to follow its policies when it did not initiate a personnel
action in the Federal Personnel/Payroll System, left Knispel on administrative leave for two years
31
without contacting him about the matter, and revoked Knispel's supervisory authorities before the
completion ofthe internal investigation. Doc.40-1 at 17. And though not highlighted in Knispel's
briefs, the record indicates Knispel did not receive an EPAP rating for 2019 and 2020—^the two
years he was on administrative leave—despite remaining employed. Knispel has not presented
any evidence that it was against BIA or OJS policy to revoke Knispel's supervisory status while
he was under investigation for misconduct. Instead, he merely questions the rationale and
rhetorically asks,"Wouldn't it have been prudent to wait for the LAD report prior to removing a
[Chief ofPolice]? Why weren't the procedures followed here?" Id. at 17. Knispel does not cite
a specific policy or procedure, and "allegations, unsupported by specific facts or evidence beyond
the nonmoving party's own conclusions, are insufficient to withstand a motion for summary
judgment," Thomas.483 F.3d at 527. What remains then is whether Knispel's Notice ofRemoval
and placement on administrative leave violated DOI or BIA policy.
The DOI's Department Manual, Doc. 68-2, states that placement on administrative leave
"should only be done in the most exceptional situations,(i.e., cases involving proposed removals
or indefinite suspensions)" and that "[o]nly bureau/office heads, their deputies, or the Director,
OHR,may authorize the placement of an employee on administrative leave for an extended period
of time (i.e., beyond 45 days)." Id. at 13. Knispel's 2018 Notice of Removal ordered him to be
"placed on paid administrative leave during the 30-day notice period." Doc. 81-1 at 47. BIA
policy allows for management to "amend the proposal notice (or cancel and reissue it at a later
date) to allow for the consideration of any additional misconduct which becomes known to
management prior to the issuance of a decision." Doc. 68-2 at 12—13. However, viewing the facts
in the light most favorable to Knispel, no amendments were made. Without an amendment, BIA
policy states, "The deciding official shall issue a written decision at the earliest practicable date
32
after receipt ofthe employee's answer(s), or following expiration ofthe 14-day answer period. The
notice of decision must be delivered to the employee (or representative) at or before the time any
action is to be effected." Id at 14. The deciding official for Knispel's 2018 Notice of Removal
appears to have never issued a written decision, which led to his prolonged period ofadministrative
leave, which appears to be contrary to DOI and BIA policy.
The Secretary disputes Knispel's assertion that"placement on administrative leave for two
years was inconsistent with applicable OJS personnel procedures," Doc.
|
61 89, but offers no
policy-based explanation for why Knispel's 2018 Notice of Removal was not acted upon "at the
earliest practicable date" as set forth in the notice. Doc. 68-2 at 14. On the other hand, Knispel
offers communications from BIA employees,that hint at the unusual nature of his prolonged leave
period. Doc. 81-3 at 76 ("I've never in 15 years come across an employee being allowed to be on
Admin Leave receiving pay for 2 years."); id at 81 (stating Knispel has "been out for a very long
time" and occupies a very critical position as Chief ofPolice);id at 82("Has [Knispel]really been
out on paid Admin Leave since December 2018?"(emphasis in original)); id at 82("Son of a gun!
Do you know why [redacted] was on 063 Admin leave investigation? In excess of 14 days.").
This evidence satisfies the "minimal" threshold of proofrequired to establish a prima facie case of
discrimination by disparate treatment based upon the BIA's failure to follow its own policy. RoseMaston. 133 F.3d at 1109-10. Lfnder the McDonnell Douglasframework, the burden shifts to the
Secretary to demonstrate a legitimate, nondiscriminatory reason for the adverse actions. ^
Mary's Honor Ctr.. 509 U.S. at 506-07.
2. Defendant's Legitimate, Nondiscriminatory Reason
The Secretary raises a legitimate nondiscriminatory reason for each adverse action.
Regarding Knispel's reassignments, the Secretary asserts that Knispel could not maintain a
33
supervisory position while he was the subject of misconduct investigations, as "the agency had an
obligation ... to ensure the safety and wellbeing of the subordinate employees of the Western
Nevada Agency." Doc. 60-3 T[ 35. The Secretary asserts that the agency issued Knispel the 2018
and 2020 Notices of Removal, which included placement on administrative leave, due to charges
set forth therein: mishandling criminal evidence; careless or negligent performance of duty;
conduct unbecoming of a supervisor; failure to safeguard criminal evidence; failure to safeguard
government property; and failure to safeguard a government firearm. Doc.46-1 atl;Doc.81-l at
47.
Knispel argues there are "no non-discriminatory reasons for the termination." Doc. 40-1
at 18. Essentially, he argues that the facts do not support the charges in the two Notices of
Removal, and therefore, the Secretary has not proffered a legitimate, nondiscriminatory reason.
Id. at 18-25. However,the Secretary's "burden at this stage is a burden of production, not proof."
Britton v. Citv ofPoplar Bluff. Missouri.. 244 F.3d 994, 996-97 (8th Cir. 2001)(cleaned up and
citations omitted). This stage "involve[s] no credibility assessment." St. Marv's Honor Ctr., 509
U.S. at 509. The reasons the Secretary sets forth, therefore, satisfy the burden. See Twvmon v.
Wells Fargo & Co.. 462 F.3d 925, 935 (8th Cir. 2006)("[Vjiolating [an employer's] policy is a
legitimate, nondiscriminatory rationale for terminating an employee.").
3. Evidence of Pretext
"A plaintiff generally may show that a proffered justification is pretextual in two ways."
Fiero v. CSG Svs..Inc.. 759 F.3d 874,878(8th Cir. 2014). "First, a plaintiff may rebut the factual
basis underlying the employer's proffered explanation,thereby demonstrating that the explanation
is unworthy of credence." Id. "Second, a plaintiff may show that the employer's proffered
explanation was not the true reason for the action, but rather that the impermissible motive more
34
likely motivated the employer's action." Id. "In either case, the plaintiff'must point to enough
admissible evidence to raise genuine doubt as to the legitimacy of the defendant's motive.'" Id.
(quoting Bamhardt v. Open Harvest Coop.. 742 F.3d 365, 371 (8th Cir. 2014)).
"Whereas [Knispel] need only make a minimal showing to establish the primafacie case,
more substantial evidence of discrimination is required to prove pretext, because evidence of
pretext is viewed in the light of [the Secretary's] legitimate, non-discriminatory explanation."
Jones V. United Parcel Serv.. Inc., 461 F.3d 982, 992 (8th Cir. 2006)(internal citation omitted).
To succeed at this stage of the McDonnell Douglas analysis, Knispel "must prove that the
prohibited reason was a determinative factor" in the BIA's decisions for the adverse employment
actions. Id The Eighth Circuit has stressed that federal courts are not to act as "super-personnel
departments revievraig the wisdom or fairness of the business judgments made by employers,
except to the extent that those judgments involve intentional discrimination." Cronauist v. Citv of
Minneapolis. 237 F.3d 920, 928 (8th Cir. 2001)(citation omitted). "[Ejmployers are free to make
employment decisions based upon mistaken evaluations, personal conflicts between employees,
or even unsound business practices." Hervev v. Cntv. ofKoochiching. 527 F.3d 711,720(8th Cir.
2008).
Viewing the evidence in the light most favorable to Knispel, no reasonable jury could find
that the Secretary's stated reasons for disciplining Knispel were pretext for racial discrimination.
After all, Knispel acknowledges that the evidence in the Medina murder case went missing and
that he, as ChiefofPolice for the WNA,was responsible for supervising investigations. Regardless
of whether he handled the evidence or directly caused it to go missing, Knispel was responsible
for ensuring investigations were properly conducted and documented. Even ifthe evidence control
technicians mishandled the evidence, Knispel, as their direct supervisor, bore some responsibility.
35
BCnispel also admits to leaving his firearm unsecured in a restroom that the public could access and
to calling co-workers a derogatory term after they had not lifted heavy equipment. Even if Knispel
considers the BIA's decision harsh, unfair, or not aligned with standard policy, he has not shown
the factual basis underlying the decision to be "unworthy of credence." Fiero. 759 F.3d at 878.
Knispel also fails to "demonstrate a causal connection between [his] protected
characteristic and the employer's decision, specifically, that [his] race 'was a motivating factor'
for [the BIA's] decision." Morris v. Dep't of Veterans Affs.. 119 F.4th 536, 538 (8th Cir. 2024)
(quoting 42 U.S.C. § 2000e-2(m)). "Evidence showing an employer has failed to follow its own
policies may indicate pretext, yet an employer can certainly choose how to run its business,
including not to follow its own personnel policies regarding termination of an employee as long
as it does not unlawfully discriminate in doing so." Edwards v. Hiland Roberts Dairv. Co.. 860
F.3d 1121,1126-27(8th Cir. 2017)(cleaned up). The only evidence Knispel presents to rebut the
Secretary's proffered explanation is that the BIA failed to follow its policy when it did not issue a
final decision or provide a new EPAP rating while Knispel was on administrative leave. Without
more, that failure does not suggest Knispel's race affected the BIA's decision. See Morris. 119
F.4th at 538. "Otherwise, disappointed employees could make a Title VII case out of any
bureaucratic oversight, regardless of whether that oversight had anything to do with a statutorily
protected characteristic." Id Accordingly, Knispel has failed as a matter oflaw to establish the
justifications proffered by the Secretary are pretext for racial discrimination, and this portion of
the Secretary's Motion for Summary Judgment is granted.
C. Disparate Treatment Based on Disability
Knispel's claim of disparate treatment based on disability similarly fails because he is
unable to demonstrate how his disability affected any employment decision.
36
Under the
Rehabilitation Act, a qualified individual with a disability shall not,"solely by reason of her or his
disability ... be subjected to discrimination ... under any program or activity conducted by any
Executive agency." 29 U.S.C. § 794(a). To make a claim under the Rehabilitation Act, Knispel
must show he was(1)disabled,(2)otherwise qualified, and(3)the victim of discrimination solely
because of his disability. Peebles v. Potter, 354 F.3d 761, 765 (8th Cir. 2004). Where no direct
evidence of discrimination is available, the McDonnell Douglas framework is applied. Id at 766.
For purposes of summary judgment, the Secretary does not dispute that Knispel has a qualifying
disability within the meaning of the Rehabilitation Act or that Knispel was otherwise qualified to
perform the essential functions ofhisjob. Thus,to establish a prima facie case, Knispel must only
demonstrate"a causal connection between an adverse employment action and his disability." Lipp
V. Cargill Meat Sols. Corp.. 911 F.3d 537,544(8th Cir. 2018)(citation omitted).
Knispel has not presented any evidence that demonstrates he was subjected to
discrimination because of his disability.
Indeed, his Memorandum in Opposition to the
Defendant's Motions, Doc. 60, does not reference his disability. Knispel's Amended Complaint,
Doc. 15,contains two allegations expressly related to his disability, both of which are unsupported
by the record. First, Knispel alleges that ASAC McDonald "denied Knispel's request to charge
forty-five days ofleave as part of an Office of Workers Compensation Program"(OWCP)claim.
Id. ^ 25. Next, he alleges supervisors "knew of and participated in the discrimination" based on
his disability. Id. ^ 67. The record reflects that ASAC McDonald and other supervisors became
aware of Knispel's PTSD diagnosis when he filed a "claim for an occupational disease" in
November 2017. Doc. 49-8 at 9. ASAC McDonald communicated with the OWCP concerning
Knispel's claim and ensured Knispel completed the proper claim form. Id at 10-17. After ASAC
McDonald processed and submitted Knispel's claim to the OWCP,the OWCP notified Knispel
37
that his medical dociimentation was "insufficient to support [his] claim" in part because Knispel
did not provide "a physician's opinion as to how employment activities caused, contributed to, or
aggravated" his PTSD. Id. at 9.
Finally, Knispel has not provided evidence of a similarly situated employee, nor shown
that the BIA failed to follow its policy, nor presented any other evidence about how his disability
claim gives rise to an inference ofdiscrimination. Because Knispel's evidence regarding his claim
for disability discrimination is insufficient to establish a prima facie case, this portion of the
Secretary's Motion for Summary judgment is granted.
D, Hostile Work Environment
As a portion of his race and disability discrimination claims, Knispel alleges that the BIA
subjected him to a hostile work environment through the persistent investigations and employment
actions against him. Doc. 15
49-73. To establish a hostile work environment claim, Knispel
must prove that "(1)[he] is a member of a protected group;(2)[he] was subject to unwelcome
race-based [or disability-based] harassment;(3)the harassment was because of membership in the
protected group; and (4) the harassment affected a term, condition, or privilege of employment."
Clay V. Credit Bureau Enters.. Inc.. 754 F.3d 535, 540 (8th Cir. 2014)(cleaned up and citation
omitted). The BIA can be liable for harassment by Knispel's non-supervisory coworkers only if
it"knew or should have known ofthe harassment and failed to take proper remedial action." Tatum
V. City of Berkeley. 408 F.3d 543, 550(8th Cii. 2005).
To satisfy the fourth element, Knispel must show the harassment was "sufficiently severe
or pervasive to alter the conditions of the victim's employment and create an abusive working
environment" Harris v. Forklift Svs.. Inc.. 510 U.S. 17, 21 (1993) (citations omitted). This
requires a finding that the environment was both one that "a reasonable person would find hostile
38
and one that the victim actually perceived as abusive." Duncan v. Gen. Motors Corp.. 300 F.3d
928,934(8th Cir. 2002). In determining whether a workplace is objectively hostile, courts must
consider "all the circumstances,including the frequency ofthe discriminatory conduct,its severity,
whether it is physically threatening or humiliating or a mere offensive utterance, and whether the
conduct unreasonably interfered with the employee's work performance." Singletarv v. Mo. Den't
of Corr.,423 F.3d 886, 892-93(8th Cir. 2005). "[N]o single factor is required," and it"is not, and
by its nature cannot be, a mathematically precise test." Harris. 510 U.S. at 22-23.
As previously noted, Knispel uses the same factual allegations to support his disparate
treatment and hostile work environment claims. Beyond those previously referenced, Knispel
asserts that EIC Hernandez was "always referring to race" and insinuated a non-Indian should not
have been selected for his position at Western Nevada Agency, Doc. 60-3 ^ 45, and that people
within the agency would frequently make jokes about race. Id K 55 (stating he had heard jokes
about "Ole and Lena, Scandinavian [descent]," about people ofPolish descent, and about himself
being non-Indian). This Court considers these statements and the multiple investigations,
reassignments, and notices ofremoval in their totality.
Even when viewed in the light most favorable to Knispel, the evidence offered falls short
of the standard set by the Supreme Court and Eighth Circuit to establish this sort of claim. "A
hostile work environment exists when the workplace is dominated by racial slurs, but not when
the offensive conduct consists of offhand comments and isolated incidents." Clav. 754 F.3d at
540. Additionally, "simple teasing, offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms and conditions of employment."
Faragher v. City of Boca Raton. 524 U.S. 775, 788 (1998)(cleaned up and citations omitted).
39
The comments by EIC Hernandez and the jokes Knispel alludes to were not so severe and
pervasive as to alter the conditions of his employment. It appears Knispel did not "actually
perceive[]" the jokes "as abusive." Duncan. 300 F.3d at 934. In his deposition testimonyj Knispel
could not remember specifics and stated that he "[didn't] agree with them" but that he "learned to
live with them." He did not "bite on things like that" because he had to "be more professional."
Doc. 49-17 at 15. Regardless of Knispel's subjective belief, the jokes and comments by EIC
Hernandez were not objectively hostile. The jokes, as described by Knispel, are "simple teasing,
offhand comments, and isolated incidents," Faragher. 524 U.S. at 788, much of which was not
even directed at him. Though the jokes may have been offensive, they do not amount to
discriminatory changes in the terms and conditions of employment. The same is true with EIC
Hernandez's remarks. Her statement that Knispel's position should have been filled by a Native
American is an offhand comment by a non-supervisor.
Previous decisions demonstrate that Knispel has not met the standard set by the Eighth
Circuit. See, e.g.. Smith v. Fairview Ridges Hosp.. 625 F.3d 1076, 1085-87 (8th Cir. 2010)
(holding insensitive comments about racial stereotypes were ofinsufficient frequency and severity
to constitute a hostile work environment), abrogated on other grounds bv Torgerson. 643 F.3d
1031; Bainbridge. 378 F.3d at 759-60 (finding a hostile work environment claim could not be
sustained where the plaintiff, whose wife was Japanese, alleged his supervisors made racially
offensive remarks about Asians at least once a month for two years); Woodland v. Joseph T.
Rverson & Son. Inc.. 302 F.3d 839,843-44(8th Cir. 2002)(finding that three instances where the
plaintiff heard from a third party that racial epithets had been used to describe him and two
instances where the plaintiff overheard coworkers use racial epithets to describe other African
American employees, in addition to other "sporadic racially-motivated misconduct," could not
40
sustain a hostile work environment claim). Knispel's allegations consisting of only vaguely
recalled jokes and one racially insensitive comment are not the kind offrequent or severe conduct
that would alter the conditions of employment.
Lastly, the multiple investigations, reassignments, and employment actions do not
constitute a hostile work environment because Knispel has not shown these alleged acts of
harassment were based on his race or disability. See Bell v. Baptist Health. 60 F.4th 1198,1205
(8th Cir. 2023)(requiring a genuine dispute of material fact about the causal nexus between the
harassment and the protected characteristic). The investigations, reassignments, and employment
actions against Knispel were all ordered by various supervisors. Knispel had not heard any of his
supervisors make any jokes or statements related to his race. See Doc. 49-17 at 6-7. Likewise,
he has offered no evidence showing any relation between the supervisory decisions and his
disability. Knispel offers his own conclusion that the investigations, reassignments, and
employment actions must constitute unlawful harassment because "never in [his] 14-year career
with the Bureau ofIndian Affairs or a 20-year career with the United States Department ofInterior
had [he] ever seen any individual that was afforded Indian preference treated in this manner or
reassigned as such." Id. at 18. Knispel's perception that he was treated unfairly does not
demonstrate that any ofthe supervisory conduct was on account of his race or disability. While
being the subject of internal investigations and multiple reassignments might be frustrating,
without "specific facts or evidence beyond [his] own conclusions," Knispel is unable to withstand
this portion ofthe Secretary's Motion for Summary Judgment. Thomas.483 F.3d at 527.
E. Retaliation
Knispel alleges that he was retaliated against in violation ofTitle VII. Doc. 15 at 12. "Title
VII prohibits an employer from discriminating against an employee who 'has opposed any practice
41
made an unlawful employment practice by this subchapter' or who 'has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this
subchapter.'" Barker v. Mo.Dep't of Corr.. 513 F.3d 831,834(8th Cir. 2008)(quoting 42 U.S.C.
§ 2000e-3(a)).^^ Though not expressly named under Title VII's federal employment provision,42
U.S.C. § 2000e-16, courts have applied the prohibition against retaliation in the federal
employment context. See, e.g.. Fanning v. Potter. 614 F.3d 845, 849-51 (8th Cir. 2010); see also
Huff V. Buttigieg. 42 F.4th 638, 646 (7th Cir. 2022)("Under Babb and Gomez-Perez, then, we
conclude that § 2000e-16 prohibits retaliation when it 'plays a part in a federal employment
decision.'")(quoting Babb v. Wilkie. 589 U.S. 399,408-409(2020)).
Knispel may avoid summary judgment on his retaliation claim by either offering direct
evidence of retaliation or using the McDonnell Douglas framework to create an inference of
retaliation. Donathan v. Oakley Grain. Inc.. 861 F.3d 735, 739 (8th Cir. 2017). Knispel does not
argue that he has direct evidence ofretaliation, and thus his claim is analyzed under the McDonnell
Douglasffamework.
Doc. 40-1 at 21-23; Doc. 60 at 11. Under that framework, Knispel has the
initial burden of establishing a prima facie case of retaliation by showing that: (1) he engaged in
protected activity; (2) he suffered a materially adverse employment action; and (3) the adverse
employment action was causally linked to the protected activity. Pve,641 F.3dat 1021. IfKnispel
establishes a prima facie case, the burden of production shifts to the Secretary to proffer "a
legitimate, non-retaliatory reason for its action." Id (citation omitted). Ifthe Secretary meets this
"The two clauses of this section typically are described, respectively, as the opposition clause
and the participation clause." Barker. 513 F.3d at 834(Colloton, J., concurring).
Again, because Knispel relies on the McDonnell Douglas framework to create an inference of
discrimination, he cannot succeed on his own Motion for Summary Judgment, Doc. 40, under the
circumstances. The Secretary's proffered non-retaliatory reason raises a genuine issue of fact,
making a grant ofsummary judgment in favor of Knispel inappropriate. Thus,this Court focuses
on the Secretary's Motion for Summary Judgment, Doc. 41, and Knispel's opposition thereto.
42
burden, Knispel must offer evidence that the proffered reason is pretext for the employer's action.
Id. Knispel at all times retains the ultimate burden of proving his retaliation claim.
Donathan.
861 F.3d at 739-40. To avoid summary judgment, Knispel needs to show evidence establishing
the adverse action was "causally linked" to his protected EEO activity. Pve. 641 F.3d at 1021.
1. Prima Facie Case for Retaliation
Knispel engaged in protected activity beginning on October 23,2017, when he first made
contact with the Agency EEO office. He then participated in his initial interview,filed a complaint
on February 9, 2018, and subsequently amended it multiple times. The Agency's initial
investigation lasted from July 2018 to March 2019. Thereafter, the Agency conducted a
supplemental investigation and issued its Supplemental Report of Investigation in April 2021.
Thus, Knispel has satisfied the first prong of a retaliation claim that he engaged in protected
activity.
Knispel argues the reassignments and 2018 Notice of Removal constitute adverse
employment actions for his retaliation claim. Doc. 15 ^ 78; Doc. 40-1 at 22. Title VII "protects
an individual not from all retaliation, but from retaliation that produces an injury or harm."
Burlington N.& Santa Fe Rv. Co. v. White. 548 U.S. 53,67(2006). "[A] plaintiff must show that
a reasonable employee would have found the challenged action materially adverse,'which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.'" Id. at 68 (quoting Rochon v. Gonzales. 438 F.3d 1211, 1219 (D.C.
While the parties have not discussed the appropriate causation standard for a retaliation claim
under 42 U.S.C. §2000e-16, recent case law suggests that Title VII's provisions governing
private-sector employees may be different from provisions governing the public sector. Compare
Univ. of Texas Sw. Med. Ctr. v. Nassar. 570 U.S. 338, 352(2013)(requiring but-for causation in
retaliation claims pursuant to § 2000e-3(a)), with Huff. 42 F.4th at 646("Under Babb and GomezPerez. then, we conclude that § 2000e-16 prohibits retaliation when it 'plays a part in a federal
employment decision.'").
43
Cir. 2006)).
The Supreme Court in Muldrow nullified the Eighth Circuit's "materiality"
requirement for discrimination claims, 601 U.S. 346(2024), but the Court noted the standard still
applied to retaliation claims. Id. at 357-58 ("White adopted the standard for reasons peculiar to
the retaliation context."). Whether an action is material "will often depend upon the particular
circumstances." White. 548 U.S. at 69.
Both the reassignments and the Notice of Removal were adverse employment actions,
despite Knispel retaining his position, receiving pay, and ultimately retiring rather than being
removed. First, a jury could find the various reassignment of duties required lower qualifications
and were of lesser prestige. Id at 71. For part of his reassignment, Knispel was not allowed to
possess his firearm and was no longer supervising a law enforcement agency but instead
transporting vehicles. Further, one reassignment required Knispel to move from western Nevada
to Aberdeen, South Dakota. While the duty stations were temporary, they could be extended at
the Agency's discretion. Second, the Notice of Removal constitutes an adverse action because
upon its receipt, a reasonable employee would believe he will be terminated. See Wierman v.
Casey's Gen. Stores. 638 F.3d 984, 999 (8th Cir. 2011) ("Unquestionably, termination is an
adverse employment action."). Notice of termination, regardless of whether it comes to fhiition
at the end of the notice period, has a similar deterring effect as actual termination. Such action
could dissuade a reasonable worker from participating in protected Title VII activity. Additionally,
upon receiving the Notice of Removal, Knispel was placed on administrative leave. He was not
promptly returned to his position; rather, he was on administrative leave for two years. Cf.
Singletarv. 423 F.3d at 891 (noting an employee placed on administrative leave who is "promptly
returned to his original position" generally does not suffer an adverse action). During that time,
Knispel did not receive any automatic step increases, and a human resources employee instructed
44
his supervisors to defer promotion to GS 1811-13 pending the outeome of the removal action.
Doc. 81-4 at 6. The fact that Knispel remained employed and paid through his retirement affects
what, if any, damages he suffered, but the 2018 Notice of Removal still brought about materially
disadvantageous changes to his compensation, conditions, and privileges of employment.
Therefore, reviewing the evidence in the light most favorable to him, Knispel has satisfied the
second element of a retaliation claim that he suffered a materially adverse employment action.
To establish the final element of a retaliation claim, Knispel must demonstrate the
materially adverse employment action was causally linked to his EEO activity. A causal link is "a
showing that an employer's 'retaliatory motive played a part in the adverse employment action.'"
Kipp v. Mo. Highway & Transp. Comm'n.. 280 F.3d 893, 897(8th Cir. 2002)(quoting Sumner v.
U.S. Postal Serv.. 899 F.2d 203, 208-09(2d Cir.1990)). Knispel must offer evidence that gives
rise to "an inference of retaliatory motive" on the part of the employer. Id. An inference can be
drawn from the timing of the two events, but "[gjenerally, more than a temporal connection
between protected activity and an adverse employment action is required to show a genuine factual
issue on retaliation exists." Gibson v. Concrete Equip. Co.. Inc.. 960 F.3d 1057, 1065 (8th Cir.
2020)(cleaned up).
Knispel has offered evidence that gives rise to an inference of retaliatory motive. Unlike
his discrimination claim, which relied only on the BIA's failure to follow its own policies, Knispel
has presented evidence beyond the abnormally long, two-year period of administrative leave.
Knispel has shown temporal proximity between his EEO activity and the Notice of Removal and
the charges it contained. Knispel initiated contact with the EEO office in October 2017. Doc. 60-
3 T[ 1; Doc. 79-2 at 2. He then filed his EEO complaint in February 2018 and subsequently
amendeditonMay22,August24,andNovember28,2018. Doc49-3 at3. The Notice ofRemoval
45
was issued on December 6—eight days after Kjiispel's most recent amendment was accepted.
Though it remains unclear exactly when the removal process began, the charges in the notice
intersect with the allegations in Knispel's 2018 EEO Complaint, suggesting temporal proximity.
See Pye.641 F.3d at 1022(noting summaryjudgment is inappropriate where "the proffered reason
for termination is inextricably intertwined with the protected conduct at issue"). For example, on
July 18,2018, Knispel contacted ASAC Funk about his concerns with one reassignment. Doc. 813 at 79. At the beginning of August,Farbor advised Knispel's supervisory team that he had begun
drafting the Notice of Removal and that Knispel should not be promoted. Doc. 81-4 at 23; Doc.
81-4 at 6. Charge 5 in the Notice of Removal states that Knispel refused to follow ASAC Funk's
directive to report on August 20 for his reassignment to Aberdeen, South Dakota. Doc. 81-1 at 56.
Knispel alleged this reassignment was discriminatory and retaliatory in his EEO complaint on
August 22. He then reported for the assignment on August 27. Doc. 81-1 at 56. At some time
between August 20 and its issuance, the Notice was updated to include Knispel's refusal to follow
the order.
In addition to temporal proximity,Knispel has presented evidence that his supervisory team
was both aware of and fhistrated with the allegations contained in his 2018 EEO Complaint.
ASAC Funk testified in his deposition that he no longer wished to supervise Knispel because he
"didn't want to continue to be subjugated to [Knispel's]false accusations,statements that were not
true, harassment, and comments that were not based on fact." 81-1 at 96. Additionally, after
receiving an email on July 13, 2018, from Knispel expressing concern with the reassignments,
ASAC Funk emailed SAC Naranjo expressing his finstration with Knispel, wherein he stated:
I have no desire to continue as Steven Knispel's supervisor and formally request
that he is removed firom under my supervisory authority.... I have been provided
directives that have placed myself at risk of personal liability, including being
directed to issue a directive to TDY [(Temporary Duty Assignment)] Steven
46
Knispel to transfer marked law enforcement vehicles for OJS throughout the
country without personal knowledge that he had his weapons removed from his
care without authorization for re-issuance.
Doc. 81-3 at 78. SAC Naranjo responded on July 16, 2018, and denied ASAC Funk's request to
no longer supervise Knispel. Id. at 80. Though ASAC Funk made no mention of Knispel's EEO
Complaint, SAC Naranjo includes in her response,"ASAC McDonald and I are parties to other
EEO matters that COP Knispel has filed prior to your arrival in District III in March 2018." Id.
The fhistration with and discussion of Knispel's EEO participation, coupled with the fact that the
Notice ofRemoval was being drafted within weeks ofthis conversation,
Doc.81-4 at 6(August
9 email from Farbor), might provide sufficient evidence for a jury to find a causal link between
the Notice of Removal and Knispel's protected activity. Thus, Knispel has established a prima
facie case of retaliation, and the burden shifts to the Secretary to proffer a legitimate, nonretaliatory reason for the actions.
2. Legitimate, Non-Retaliatory Reason
The Secretary's legitimate non-retaliatory reasons are the same as those raised as
nondiscriminatory reasons. Regarding Knispel's reassignments, the Secretary asserts that Knispel
could not maintain a supervisory position while he was the subject of misconduct investigations
and that the Agency had a need for each duty Knispel was assigned. Doc. 60-3
35,44-45. The
Secretary asserts that the Agency issued Knispel the 2018 Notice of Removal due to charges set
forth therein: mishandling criminal evidence; careless or negligent performance of duty; conduct
unbecoming a supervisor; failure to safeguard criminal evidence; failure to safeguard government
property; and failure to safeguard a government firearm. Doc. 81-1 at 47. These reasons satisfy
the burden ofproduction.
Twvmon.462 F.3d at 935 ("[Vjiolating [an employer's] policy is a
legitimate, nondiscriminatory rationale for terminating an employee.").
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3. Evidence of Pretext
Knispel may show pretext by rebutting the factual basis underlying the Secretary's
proffered explanation or by demonstrating retaliation more likely motivated the action. Fiero v.
CSG Svs.. Inc.. 759 F.3d 874, 878 (8th Cir. 2014). Knispel must point to enough admissible
evidence to raise genuine doubt as to the legitimacy ofthe Secretary's proffered reason. Id As
was true with Knispel's discrimination claim, this Court is not to act as a "super-personnel
department]] reviewing the wisdom or fairness of the business judgments made by employers,"
except to the extent that those judgments are unlawful. Cronouist, 237 F.3d at 928. "The
appropriate scope of an internal investigation ... is a business judgment, and [this Court] do[es]
not review the rationale behind such a decision." Pulczinski v. Trinitv Structural Towers. Inc..
691 F.3d 996, 1005 (8th Cir. 2012). To prove pretext, more substantial evidence is required than
to establish a prima facie case because "evidence ofpretext and retaliation is viewed in light ofthe
employer's justification." Logan v. Liberty Healthcare Corp.. 416 F.3d 877, 881 (8th Cir. 2005)
(cleaned up and citation omitted). "A plaintiff may show pretext, among other ways, by showing
that an employer(1)failed to follow its own policies,(2)treated similarly-situated employees in a
disparate manner, or (3) shifted its explanation of the employment decision." Gibson v. Am.
Greetings Corp., 670 F.3d 844, 854 (8th Cir. 2012)(citation omitted). Knispel attempts to show
pretext through a similarly situated employee and through the BIA's failure to follow its own
policy. As discussed in his discrimination claim,Knispel is unable to provide comparator evidence
of a similarly situated employee, leaving him the argument that the BIA failed to follow its own
policies.
48
Regarding his reassignments, Knispel has not named any policy that the BIA failed to
follow.^^ However, as noted in his racial discrimination claim, Knispel has pointed to evidence
showing the BIA's failure to follow its policy respecting the 2018 Notice of Removal and
accompanying administrative leave. The 2018 Notice of Removal states:
The deciding official [R. Glen Melville] will give full consideration to your reply
and you will receive a written decision at the earliest practicable date afterward. If
you choose not to reply, a written decision will be issued as soon as practicable
after expiration ofthe time allowed for a reply....Effective immediately, you are
placed on administrative leave during the 30-day notice period ....
Doc. 81-1 at 65. Further, the DOTs Department Manual,Doc. 68-2, states that "[a]fter issuing the
notice of proposed adverse action, management can amend the proposal notice (or cancel and
reissue it at a later date)to allow for the consideration ofany additional misconduct which becomes
known to management prior to the issuance of a decision." Id at 12-13. Here, the Notice of
Removal was not amended, and though it was eventually canceled and reissued two years later,
there apparently was no additional misconduct triggering those changes. Rather, the 2018 Notice
ofRemoval was canceled due to the "passage oftime, as well as administrative issues surrounding
this matter." Doc. 70-8. If policy were followed, Knispel should have been on administrative
leave for the 30-day notice period. Doc. 68-2 at 13. Instead, Melville never issued a written
decision, and Knispel remained on administrative leave for two years. BIA policy allowed for
amendments and extensions, but KnispeTs prolonged administrative leave seemed both
In ASAC Funk's affidavit for KnispeTs EEO investigation, when asked to identify the agency
policy or procedure to reassign Knispel, ASAC Funk responded,"I don't know the specific name
ofthe policy." Doc. 49-2. However, Knispel ultimately retains the burden of proving retaliatory
motive through the BIA's failure to follow its policy. Donathan. 861 F.3d at 739-40. ASAC
Funk's inability to recall the policy during the investigation is insufficient to show pretext. See
also Gilbert v. Des Moines Area Cmtv. Coll.. 495 F.3d 906,919(8th Cir. 2007)(noting lack of an
explicit policy does not demonstrate the employer's decision to investigate and discipline the
employee for his actions was pretextual).
49
exceptional and beyond what BIA policy countenances. Melville should have issued a written
decision on Knispel's 2018 Notice of Removal "at the earliest practicable date," but instead
Melville testified he did not recall ever seeing the proposed removal. Doc. 81-2 at 26-27.
Knispel has shown how abnormal it was to be placed on administrative leave for two years
through statements of BIA employees. In response to a questionnaire she received during
Knispel's ongoing EEO Investigation, Denise Androlia, a BIA Benefits Officer who worked on
Knispel's retirement application, wrote: "I've never in 15 years come across an employee being
allowed to be on Admin Leave receiving pay for 2 years." Doc. 81-3 at 76; see also id. at 81
(stating Knispel has "been out for a very long time" and occupies a very critical position as Chief
ofPolice); id at 82("Has [Knispel] really been out on paid Admin Leave since December 2018?"
(emphases in original)); id at 82("Son of a gun! Do you know why [redacted] was on 063 Admin
leave investigation? In excess of 14 days."). Conversely, the Secretary offers no policy-based
explanation for why Knispel remained on administrative leave for two years but instead states,
"Time passes and a determination is made that a subsequent removal letter should be issued." Doc.
52 at 20.
While bureaucratic oversight alone is generally insufficient to maintain a claim,^Morris.
119 F.4th at 538, Knispel has shown that his supervisors were aware of and frustrated with the
allegations in Knispel's EEO complaint and that one supervisor no longer wished to supervise
Knispel. In this context, a reasonable jury could find that a placement on administrative leave for
two years was not merely an administrative oversight. Thus, Knispel produced rebuttal evidence
sufficient to raise a genuine issue of material fact concerning the BIA's proffered reasons for the
2018 Notice of Removal and accompanying administrative leave. The portion of the Secretary's
Motion for Summary Judgment relating to Knispel's retaliation claim is denied.
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F. Constructive Discharge
Knispel next claims his working conditions were so intolerable that he felt pressured and
compelled to resign, amounting to a constructive discharge. Doc. 15
82-85. "Under the
constructive discharge doctrine, an employee's reasonable decision to resign because of
unendurable working conditions is assimilated to a formal discharge for remedial purposes." Pa.
State Police v. Suders. 542 U.S. 129, 141 (2004). To establish a claim of constructive discharge,
Knispel must show "(1) a reasonable person in [his] situation would find the working conditions
intolerable, and (2)the employer intended to force [him] to quit." Bell v. Baptist Health. 60 F.4th
1198,1203(8th Cir. 2023). In addition to the above requirements,there is another"basic"element:
Knispel "must also show that he actually resigned." Green v. Brennan. 578 U.S. 547,555(2016).
Knispel's constructive discharge claim fails because he did not resign. Instead, Knispel
remained on paid administrative leave until he retired on December 31, 2020. Doc. 60-3
11,
72; see also Doc. 15 ^ 86. Knispel retired because he had reached the age or time served for
mandatory retirement, not because of intolerable working conditions. Doc. 40-1 at 16 (stating
Knispel's separation was "by mandatory retirement"); see also 5 U.S.C. § 8335(b)(1)("A law
enforcement officer... shall be separated from the service on the last day of the month in which
that officer ... becomes 57 years of age or completes 20 years of service if then over that age.").
Since Knispel did not satisfy the basic element of actually resigning, the Secretary's Motion for
Summary Judgment relating to the constructive discharge claim is granted.
IV.
Conclusion
For the reasons explained above, it is hereby
ORDERED that the Plaintiffs Motion for Partial Summary Judgment, Doc. 40,is denied.
It is further
51
ORDERED that the Defendant's Motion for Summary Judgment, Doc. 41, is granted in
part and denied in part. The motion is granted with respect to Plaintiffs disparate treatment, hostile
work environment, and constructive discharge claims, and the motion is denied with respect to
Plaintiffs retaliation claim concerning the 2018 Notice of Removal and accompanying
administrative leave.
DATED this
day of January, 2025.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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