Baldwin v. Holder
Filing
31
MEMORANDUM AND ORDER GRANTING 26 MOTION to Alter Judgment.(Signed by Judge Keith P Ellison) Parties notified.(sloewe)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TRACY L. BALDWIN,
§
§
§
§
§ CIVIL ACTION NO. H-09-842
§
§
§
§
§
Plaintiff,
v.
ERIC H. HOLDER, JR., THE UNITED
STATES ATTORNEY GENERAL,
Defendant.
AMENDED MEMORANDUM AND ORDER
THE MEMORANDUM AND ORDER DATED FEBRUARY 24, 2011 IS
WITHDRAWN, AND THIS AMENDED MEMORANDUM AND ORDER IS
SUBSTITUTED.
This Amended Memorandum and Order is issued after the Court has had the
opportunity to review the parties’ briefing and arguments regarding Plaintiff’s Motion to
Alter Judgment (Doc. No. 26), and to consider the Supreme Court’s recent opinion in
Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011).
Pending before the Court is Defendant’s Motion for Summary Judgment. (Doc.
No. 16.) After considering the parties’ arguments and the applicable law, the Court finds
that the motion should be denied.
I.
BACKGROUND
Plaintiff Tracy L. Baldwin was employed for nine years as a Special Agent
(“SA”) for the Federal Bureau of Investigation (“FBI”). Plaintiff began her employment
with the FBI in its Albuquerque, New Mexico office in 1997. (Doc. No. 16, Ex. 1, Tracy
1
Baldwin Dep., Aug. 8, 2010, at 19-20.) During her time in Albuquerque, Plaintiff was
suspended from work twice, once for five days and once for thirty-seven days. (Id. at 53.)
The five-day suspension resulted from an incident in the fall of 2001 in which Plaintiff
parked at the Albuquerque airport illegally and went inside to change an airline ticket,
using her position as an FBI agent as an excuse for her parking. (Id. at 53-59.) The thirtyseven day suspension resulted from using an FBI vehicle to move personal belongings
and for engaging in inappropriate physical contact with another FBI employee in an FBI
vehicle. (Id. at 59-62; Doc. No. 16, Ex. 3, at 1225-27.) While she was working for the
FBI in Albuquerque, Plaintiff complained that certain FBI personnel discriminated
against her on the basis of her sex, and she filed an Equal Employment Opportunity
complaint (“EEO complaint”) and eventually a federal lawsuit in September 2003. See
Baldwin v. Ashcroft, Case No. 03-cv-3687 (S.D. Tex.). That lawsuit (which was
transferred to the District of New Mexico in March 2004) was eventually settled before
trial.
In December 2001, Plaintiff was transferred to the FBI’s Houston office.
(Baldwin Dep. at 37.) Her work there included conducting background investigations of
government personnel. (Id. at 186-87.) Beginning in January 2004, she also served as the
intern coordinator. (Id. at 106.)
Plaintiff presents evidence that she did her job competently and that her work was
valued. Her 2003 and 2004 FBI Performance Appraisal Reports indicate that her work
“Meets Expectations” in every relevant category. (Doc. No. 20, Ex. 1.) Her supervisors in
Albuquerque provided a strong positive recommendation when she was transferred to
Houston, indicating that Plaintiff has a good attitude and was hard-working, even in
2
difficult circumstances. (Doc. No. 20, Ex. 2.) Several people complimented her work as
intern coordinator, including FBI Associate Division Counsel Kevin Donnelly, a number
of interns (including eight from 2004), and Sam Houston State University (“SHSU”)
Professor James Barrum (“Dr. Barrum”). (See Doc. No. 20, at 4-5, 10 (citing exhibits).)
Indeed, Donnelly testified that Plaintiff “really set the standard for the [internship]
program,” and that “headquarters had called her and asked her to go other places to work
on [it].” (Doc. No. 20, Ex. 3, Kevin Donnelly Dep., May 6, 2010, at 13-14.) Plaintiff also
provides statements made by twenty-two individuals over the years attesting to her good
character and work. (Doc. No. 20, Ex. 5A.)
In the summer of 2004, Plaintiff began to have conflicts with a college intern
from SHSU (hereinafter, “the Intern”). Plaintiff found the Intern’s behavior strange—for
example, at a presentation by a Magistrate Judge, the Intern sat with his hand over his
face, rocked his head back and forth, and “picked at” his clothing. (Baldwin Dep. at 13738.) Plaintiff testified that the Intern became very angry on two occasions when Plaintiff
denied requests he made. On the first occasion, Plaintiff testified that, when she denied
the Intern’s request to have a barbecue at his house during work hours as an intern
function, the Intern’s:
[B]ody became very rigid. It was stiff like a board. He clinched his fists,
both . . . and he held them down to his sides where his body was
trembling—tremoring. I could see him shaking. And I saw in his face, he
just got deep red. His lips were pursed, clinched. And he stood there in
that posture shaking, glaring at me.
(Baldwin Dep. at 140-42, 229-30.) Plaintiff testified that she flinched because she was
“wondering if he was going to hit me.” (Id. at 231.) On the second occasion, Plaintiff
testified that, when she denied his request to extend his internship by one week, the Intern
3
had a similar reaction, which frightened Plaintiff. (Id. at 142-44, 230-31.) Plaintiff
testified that Danny Fuentes, an FBI agent who was present on the second occasion, told
her that the Intern “was ready to come after you, he was bowed up at you in a heartbeat.”
(Id. at 143.)
In July 2004, several of the thirteen summer interns met with Acting Assistant
Special Agent-in-Charge Russell Robinson and complained that Plaintiff’s performance
as intern coordinator, stating that she was mean, among other things. (Id. at 120-21, 123.)
Shortly thereafter, Plaintiff was removed as intern coordinator, and Robinson granted the
Intern’s request for a short extension of his internship. (Id. at 124-25.) Plaintiff expressed
her concerns about the Intern to Robinson on several occasions. (Id. at 126-29, 150-52.)
She told Robinson that she was concerned in part because the Intern had been in the
military and was familiar with firearms. (Doc. No. 20, Ex. 11, at 20.) Robinson agreed to
reinstate Plaintiff as intern coordinator and to rescind the Intern’s extension, though he
told Plaintiff at the same meeting, referring to the Intern, “I don’t even want to hear this
kid’s name again.” (Id. at 151-52.)
The weekend after that meeting with Robinson, Plaintiff began to conduct Internet
research on “negatively influential people” because she wondered “how in the world
could a college student be so influential with high level FBI personnel . . . .” (Baldwin
Dep. at 158-59.) She identified a number of similarities between the Intern and the serial
killer Ted Bundy—such as seeming normal to most people, engaging in petty theft, and
believing himself not subject to authority—and became convinced that the Intern could
be dangerous to Plaintiff and others. (Id. at 159-62.) Plaintiff met with Dr. Barrum at his
office at SHSU and conveyed her concerns regarding the Intern’s supposed similarities to
4
Bundy. (Id. at 165-70.) Plaintiff provided Dr. Barrum with some of the information she
had found about Bundy on the Internet and told Dr. Barrum about how the events had
unfolded in the FBI office, expressing her concern that the Intern was dangerous. (Id.) Dr.
Barrum subsequently contacted other FBI personnel in Houston and told them that he
“felt that [Plaintiff] had taken some extreme measures,” that she “must have been under a
great deal of stress and that she needed some psychological assistance,” and that he “was
deeply concerned about SA Baldwin’s mental state and he wanted her to get the
appropriate assistance.” (Doc. No. 16, Ex. 5.)
On August 17, Plaintiff prepared an approximately hundred-page-long notebook
organizing her investigation, to show to Blake McConnell, the FBI Houston division
polygrapher, as she sought his opinion about the Intern’s behavior. (Id. at 162-63.) In it,
Plaintiff compared the Intern to Ted Bundy—including making a chart of forty-seven
supposed similarities between the two men—and warned that the Intern was on a
“parallel Bundy track” and was potentially “at the brink of ‘snapping.’” (Doc. No. 17,
Ex. 6 (emphasis in original).) The notebook includes an intricately-planned scenario for
notifying the Intern of the concerns and informing him that he could not extend his
internship and would not receive a positive evaluation. (Id. at 816-17.) The scenario
describes Baldwin, several FBI SWAT team personnel, Dr. Barrum, and a dean from
SHSU convening in a meeting room with the Intern, having told the Intern when he was
invited that the FBI would like to hire him in the future, and having instructed him to
bring a Director Certification and glass plaque that had been given to him. (Id.) The
scenario includes such details as:
5
-
-
-
-
-
SA Baldwin will chew gum, tear certificate, make faces in reaction to
speaker “discipline” and click blue pen. No one can look in this
direction.
SWAT 2 + 3 will alternately correct any [of the Intern’s] movement.
Suspect leg jiggle to be first. Place hand on his shoulder (he does not
like to be touched) and tell him to stop, he is being disrespectful. He
must be kept still (no outlet for pressure he will feel).
SWAT 4 stands out of [the Intern’s] eye line and allows a “corridor”
of opportunity to SA Baldwin. [The Intern] will perceive that he has
true authority surrounding him (horseshoe), except for SA Baldwin.
SWAT 4 position is crucial to protection of SA Baldwin. [The Intern]
has no outlet but to lash out at SA Baldwin.
Head table should have a skirt on it down to the floor. Place concrete
(or other hard material) on floor between SA Baldwin and A/ASAC
Robinson. Glass plaque is passed down, with each person stating how
nice it is and A/ASAC Robinson stating that the FBI has them made in
Buffalo, New York especially for the interns. A/ASAC Robinson
hands glass plaque to SA Baldwin. SA Baldwin drop glass plaque
during “sneeze.” Everyone says, “bless you.” Dr. Barrum provides a
tissue that is passed down line to SA Baldwin. I say “ooops” and
A/ASAC Robinson says, “What a shame.” SWAT 1 – “shush” [the
Intern].
A/ASAC Robinson…address each issue that [the Intern] wrote about
in his [internship program] evaluation. Save the BBQ for last so I have
a cue. “I have a signed statement from SA Baldwin that documents
that when you presented yourself as the Intern spokesman for your
little ‘BBQ,’ 4 Interns could not, or would not attend. “[Intern,] that is
lack of candor. As SA Baldwin has told you repeatedly during the
semester, the FBI does not tolerate lack of candor!”
(Id.) The notebook also contains “Case Recommendations” for further investigatory steps
by Plaintiff and others at the FBI. (Id. at 717.)
Plaintiff also contacted an FBI information technology employee to inquire about
obtaining emails from the Intern and another intern as part of her investigation. (Baldwin
Dep. at 182.) Shortly thereafter, an assistant SAC permanently removed Plaintiff as intern
coordinator.
On August 23, 2004, SA William Haman, the Chief Division Counsel in Houston,
drafted an internal FBI recommendation, which was approved by Special Agent-in-
6
Charge (“SAC”) Roderick Beverly and Acting Assistant SAC Robinson. (Doc. No. 17,
Ex. 7.) It described Plaintiff’s conflicts with the Intern and her investigation relating to
Bundy, referring to her “seemingly escalating obsession with this matter.” (Id.) It stated
that Plaintiff had improperly disseminated material outside the FBI (to Dr. Barrum)
without obtaining approval from her supervisor and noted that “SA Baldwin’s assigned
duties in conducting background investigations seemed to be suffering during this period
of time.” (Id.) It recommended Plaintiff “for a psychological fitness for duty examination
as soon as possible and refer[red] allegations of misconduct to [the Office of Professional
Responsibility (“OPR”)].” (Id.)
Beverley testified that, in approving the recommendation, he relied on
information from Haman and two Assistant SACs and that he did not conduct an
investigation on his own. (Doc. No. 20, Ex. 10, Roderick Beverley Dep., Aug. 18, 2010,
at 7-8, 20.) Robinson testified that he recalled the decision to make the recommendations
to OPR was made by three people—Haman, Beverly, and himself—and that he did not
recall whether he changed anything from Haman’s draft recommendation. (Doc. No. 20,
Ex. 11, Russell Robinson Dep., May 14, 2010, at 46-47.)
On October 18, 2004, the FBI’s Administrative Services office responded to the
August 23 recommendation, and found that a psychological evaluation was not needed
because:
Although SA Baldwin has performed inappropriate actions against this
intern, no evidence has been presented of overt thought disorder or
emotional signs or symptoms suggestive of a major mental health
diagnosis. The issues presented are more likely related to personality traits
which are not medically actionable. Personality traits and disorders are not
amenable to successful therapeutic intervention unless the individual
recognizes that a problem exists and there is a desire to participate in the
process of improvement.
7
(Doc. No. 17, Ex. 11, at 2150.) The Administrative Services office did, however,
recommend that administrative actions should continue as the appropriate remedy for
Plaintiff’s behavior. (Id.)
On January 3, 2005, at OPR’s request, Haman drafted an investigation report
regarding Plaintiff’s misconduct, and it was approved by Beverly. (Doc. No. 17, Ex. 19.)
The report described the results of the investigation of Plaintiff, analyzed the factors
relevant to whether a penalty was appropriate, see Douglas v. Veterans Admin., 5
M.S.P.B. 313, 331-32 (M.S.P.B. 1981), and concluded that Baldwin should be terminated
from the FBI. (Doc. No. 17, Ex. 19.) Beverly testified that he did not make any changes
to Haman’s draft. (Beverly Dep. at 20.) Beverly also testified that, while he sometimes
speaks with employees before they are dismissed, he does not normally question the
subject during the course of an investigation if the subject is available, and did not speak
with Plaintiff prior to approving the report. (Id. at 9, 22.) He also testified that he never
saw the documents that Plaintiff allegedly provided to Dr. Barrum at SHSU, and has no
first-hand knowledge of Plaintiff acting insubordinate, providing documents to non-FBI
personnel, or not being a truthful person. (Id. at 15, 24-25.) Plaintiff contends that the
report improperly failed to consider mitigating evidence suggesting, for example, that
Plaintiff had done in good job in her normal work and as intern coordinator.
Plaintiff was informed in January 2006 that the FBI was proposing her dismissal.
(Baldwin Dep. at 191-92.) She provided a written submission to OPR and travelled with
her attorney to FBI Headquarters to present her case before the OPR Review Panel. (Id.
at 193.)
8
On April 7, 2006, OPR Assistant Director Candice Will signed a final termination
letter to Plaintiff. (Doc. No. 17, Ex. 9.) It found that the allegations against Plaintiff had
been substantiated, and described the findings in detail. (Id.) It concluded that Plaintiff
had 1) conducted an unauthorized investigation of an FBI intern; 2) engaged in
unprofessional conduct and unauthorized disclosure by releasing information on an FBI
intern to the intern’s university without authority; 3) engaged in insubordination by
failing to comply with a direct order to discontinue any further inquiry or investigation
regarding the intern; and 4) lied under oath during the course of the administrative
inquiry. (Id. at 2884.) The lying under oath charge was based on Plaintiff’s stating in her
sworn statement, “I do not recall [the Acting Assistant SAC] giving me a direct order.
[Donnelly] was the only management official that told me as of August 18, 2004, to drop
the issue regarding [the Intern].” (Id. at 2897.) OPR found that, in the face of testimony
from both [Robinson and Donnelly], Plaintiff’s failure to recall that order was not
credible. (Id.) The OPR letter notes that this is Plaintiff’s “third substantiated OPR
inquiry” during her seven years at the FBI and that she had been suspended for a total of
42 days for her prior misconduct. (Id. at 2899.) It then states, “It appears that you have
learned little from your past misdeeds. Your disciplinary history, coupled with your
misconduct in this matter, reflects a patterned disregard for Bureau rules and
regulations.” (Id.)
In reaching her decision, Will read the investigative report but did not personally
interview witnesses except for Plaintiff. (Doc. No. 20, Ex. 13, Candice Will Dep., June 9,
2010, at 18-20.) For example, Will determined that Plaintiff had lied under oath based on
the prior signed, sworn statements of other witnesses who contradicted Plaintiff. (Id. at
9
29.) Plaintiff testified that she offered to take a polygraph test, but that Will and others
did not agree to administer one to her. (Baldwin Dep. at 244-45.) Will later attested that
she was not aware that Plaintiff had filed an EEO complaint until Plaintiff’s dismissal
hearing, although she acknowledged that she would have read the written response
submitted by Plaintiff’s attorney prior to the hearing, which referenced the EEO
complaint. (Id. at 12-16.)
Plaintiff alleges that Haman retaliated against her for her previous employment
discrimination lawsuit by engineering her dismissal. Although the previous suit was filed
in September 2003, Plaintiff testified that she and her attorney began “working on [it]
diligently” in June 2004. (Baldwin Dep. at 74-75, 221.) Plaintiff also notes that discovery
began on May 18, 2004 and that initial disclosures were due by July 30, 2004. (See Doc.
No. 20, Ex. 9.) Plaintiff testified that Haman was aware of her lawsuit, and that, even
prior to June 2004, Haman’s demeanor toward Plaintiff when she updated him about the
lawsuit “was that he was disgusted with me . . . he would roll his eyes. He would put his
feet up on the desk with his feet to me. He’d cross his arms.” (Baldwin Dep. at 220.) She
testified that when Haman gave Plaintiff her personnel file in June 2004, “he told me I
could go wipe my butt with it,” and that his demeanor toward her “just got worse and
worse and worse as my time to work on the case got more intense.” (Baldwin Dep. at
221-22.)
Assistant Division Counsel Donnelly testified that Haman told him in
approximately the summer of 2004 that Plaintiff would be travelling to Albuquerque in
relation to an EEO complaint she had filed. (Doc. No. 20, Ex. 3, at 6-7.) Donnelly also
testified that Haman told him “it would not surprise him if Ms. Baldwin filed an EEO
10
complaint against Houston management concerning the ongoing OPR inquiry concerning
Ms. Baldwin’s involvement with [the Non-Paid Intern Program].” (Id. at 7.) Donnelly
speculated that Haman meant he would not be surprised if Baldwin filed another
complaint because people who have filed one EEO complaint often file multiple
complaints. (Id.) Donnelly referred to such people as “frequent filers.” (Id.)
Plaintiff presents evidence of instances in which FBI agents who were found to
have lied under oath, disclosed sensitive information, or conduct unauthorized
investigations were given little or no punishment. (See Doc. No. 20, at 12-15.) She
contends that she received a much harsher punishment than similarly situated employees.
Plaintiff brings this suit alleging retaliation for engaging in protected activity, in
violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e, et seq.
II.
LEGAL STANDARD FOR SUMMARY JUDGMENT
A motion for summary judgment requires the Court to determine whether the
moving party is entitled to judgment as a matter of law based on the evidence thus far
presented. Fed. R. Civ. P. 56(c). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Kee v. City of Rowlett, 247 F.3d
206, 210 (5th Cir. 2001) (quotations omitted). A genuine issue of material fact exists if a
reasonable jury could enter a verdict for the non-moving party. Crawford v. Formosa
Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000). The Court views all evidence in the
light most favorable to the non-moving party and draws all reasonable inferences in that
party’s favor. Id. Hearsay, conclusory allegations, unsubstantiated assertions, and
11
unsupported speculation are not competent summary judgment evidence. Fed. R. Civ. P.
56(e)(1); see, e.g., Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); McIntosh v.
Partridge, 540 F.3d 315, 322 (5th Cir. 2008); see also Little v. Liquid Air Corp., 37 F.3d
1069, 1975 (5th Cir. 1994) (noting that a non-movant’s burden is “not satisfied with
‘some metaphysical doubt as to the material facts’”) (citing Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
III.
LEGAL STANDARD FOR RETALIATION CLAIMS
Title VII makes it an unlawful employment practice for an employer:
[T]o discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a). Under the McDonnell Douglas framework, the plaintiff first “has
the burden of proving by the preponderance of the evidence a prima facie case of
discrimination.” Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). To establish a prima
facie case of retaliation under Title VII, a plaintiff must show “(1) that she engaged in
activity protected by Title VII, (2) that an adverse employment action occurred, and (3)
that a causal link existed between the protected activity and the adverse action.” Gee v.
Principi, 289 F.3d 342, 345 (5th Cir. 2002) (citation omitted).
With regard to the third element, “a ‘causal link’ is established when the evidence
demonstrates that the [adverse action] was based in part on knowledge of the employee’s
protected activity.” Medina v. Ramsey Steel Co., Inc., 238 F.3d 674, 684 (5th Cir. 2001)
(citation omitted). “Although the plaintiff’s burden at the prima facie stage is not
12
onerous, the plaintiff must produce at least some evidence that the decisionmakers had
knowledge of [her] protected activity.” Manning v. Chevron Chemical Co., LLC, 332
F.3d 874, 883 n.6 (5th Cir. 2003). “[T]he mere fact that some adverse action is taken after
an employee engages in some protected activity will not always be enough for a prima
facie case.” Swanson v. General Services Admin., 110 F.3d 1180, 1188 n.3 (5th Cir.
1997). However, “[t]he plaintiff need not prove that her protected activity was the sole
factor motivating the employer’s challenged decision” in order to meet this burden. Gee,
289 F.3d at 345.
If a plaintiff makes out a prima facie case for retaliation, “the burden then shifts to
the defendant to demonstrate a legitimate nondiscriminatory purpose for the employment
action.” Id. As the Supreme Court has explained this standard:
The defendant need not persuade the court that it was actually motivated
by the proffered reasons. It is sufficient if the defendant’s evidence raises
a genuine issue of fact as to whether it discriminated against the plaintiff.
To accomplish this, the defendant must clearly set forth, through the
introduction of admissible evidence, the reasons for the plaintiff’s
rejection.
Burdine, 450 U.S. at 254 (citations and footnote omitted). “If the defendant satisfies this
burden, the plaintiff must prove that the employer’s stated reason for the adverse action
was merely a pretext for the real, discriminatory purpose.” Gee, 289 F.3d at 345. “She
may succeed in this either directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256.
IV.
ANALYSIS
A. PRIMA FACIE CASE
13
Defendant first argues that Plaintiff has not proven a causal link between her EEO
complaint and her termination, and so has not made out a prima facie claim of retaliation.
Plaintiff argues that she has demonstrated a causal link because the recommendation that
led to her dismissal occurred close in time to her protected conduct, and her dismissal
was engineered by Haman, who had shown animosity toward Plaintiff due to her
discrimination lawsuit.
1. Temporal Proximity
Plaintiff argues that the closeness in time between her protected conduct and the
retaliatory actions establishes a causal link. Although “[c]lose timing between an
employee’s protected activity and an adverse action against [her] may provide the ‘causal
connection’ required to make out a prima facie case of retaliation,” Swanson, 110 F.3d at
1188, the Fifth Circuit has found a lapse of five months to be insufficient, absent other
evidence. Raggs v. Mississippi Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002).
The parties in this case dispute how to properly count the time lapse between the
protected conduct and the allegedly retaliatory conduct. Plaintiff argues that the date from
which to begin counting is mid-June, 2004, when she informed Haman of
communications with her attorney in the lawsuit, and when she received her personnel
file (along with alleged animosity and hostility from Haman). Haman drafted a
recommendation that Plaintiff be investigated on August 23, 2004, so Plaintiff argues that
the time lapse was only two months. Defendant argues that the counting should begin
either when Plaintiff initiated her EEO complaint in March 2002 or when she provided a
copy of the federal complaint to FBI officials in Houston in September 2003. Defendant
argues that the allegedly retaliatory events should be counted either from when Plaintiff
14
was actually terminated in April 2006 or from the August 2004 recommendation. Thus,
Defendant argues that the time lapse was no less than eleven months, and as long as four
years and one month.
The Fifth Circuit has looked to the date an EEO complaint was filed to calculate
temporal proximity. See, e.g., Mitchell v. Snow, 326 Fed. App’x 852, 856 n.6 (5th Cir.
2009) (“the complaint appears to be the relevant starting point”); Strong v. University
Healthcare System, L.L.C., 482 F.3d 802, 807-08 (5th Cir. 2007); see also Hanks v.
Shinseki, 2010 WL 3000835, at *7 (N.D. Tex. July 28, 2010) (“[the plaintiff’s] reading of
the law would allow an employee to restart the temporal-proximity clock simply by
notifying her employer every time she did anything to prosecute her EEO complaint”); id.
at *7 n.42 (citing cases). Because knowledge by the employer of the protected conduct is
also required, the appropriate date to begin calculating temporal proximity in this case is
September 2003, when Houston officials, including Haman, became aware of Plaintiff’s
federal discrimination complaint.1 Therefore, the employers’ knowledge of Plaintiff’s
protected conduct and the first action that began the process of Plaintiff’s dismissal were
approximately eleven months apart. Without more evidence, this is insufficient under
Fifth Circuit precedent to meet Plaintiff’s burden to show a causal link. See, e.g., Raggs,
278 F.3d at 472 (5th Cir. 2002) (five-month proximity insufficient).
2. Haman’s Retaliatory Intent
1
There may well be instances in which a significant change occurs in a plaintiff’s discrimination lawsuit
such that her employer’s reaction would be different in kind from learning of the discrimination complaint
to begin with. However, the Court need not decide that broader question, because the changes in the lawsuit
that Plaintiff alleges are routine steps of discovery in any lawsuit—such as exchanging initial disclosures.
Plaintiff has not presented evidence sufficient to create a factual issue as to whether any significant change
occurred in her lawsuit after September 2003 such that a later date should be used for this purpose.
15
Beyond mere temporal proximity, Plaintiff argues that Haman showed animosity
toward Plaintiff due to her discrimination lawsuit and that as a result he “engineered” her
dismissal. In support of this contention, Plaintiff cites her own testimony that Haman told
her she could “wipe [her] butt with” her personnel file, that Haman yelled at her but did
not yell at agents who had not filed EEO complaints, and that his hostile demeanor—such
as crossing his arms and rolling his eyes when talking to Plaintiff—intensified as a result
of Plaintiff’s discrimination lawsuit. (Baldwin Dep. at 221-22.)
The Court finds that Plaintiff has presented sufficient evidence such that a
reasonable jury could find a causal link between Haman’s hostility and his investigation
of Plaintiff. Plaintiff relies not only on her subjective belief, see Peace v. Harvey, 207
Fed. App’x 366, 369 (5th Cir. 2006) (per curiam) (“[plaintiff’s] subjective belief the
incidents were retaliatory, without more, is not sufficient to survive summary judgment”),
but also on her testimony about specific statements and actions that Haman took. In
addition, Haman’s initial recommendation to OPR was made only a month after his
alleged hostile statement and demeanor, so it is a reasonable inference that his hostility
affected the existence and/or contents of his recommendation.2 At the summary judgment
stage, the Court must “refrain from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395,
398-99 (5th Cir. 2008). Although Plaintiff’s testimony by no means conclusively proves
that Haman retaliated against Plaintiff because of her lawsuit, it is sufficient to raise
genuine issues of material fact on that question.
2
As noted above, for purposes of proving a causal link through temporal proximity alone, the timing is
generally counted from the date an EEO complaint was filed and the employer knew about it. However,
evidence tending to prove that retaliatory behavior occurred in reaction to another event in a plaintiff’s
discrimination complaint process is still relevant to whether a causal link exists.
16
3. “Cat’s Paw” Theory
However, even if Haman conducted an investigation of Plaintiff and
recommended her termination in retaliation for her protected conduct, Plaintiff still must
show that a decisionmaker retaliated against her. In this case, Plaintiff does not contend
that Haman was a decisionmaker; instead, Plaintiff relies on the “cat’s paw” theory,
contending
that
Will,
as
the
decisionmaker,
was
influenced
by
Haman’s
recommendations in reaching her decision. See Gee, 289 F.3d at 346 (while the
“statements and actions of ordinary employees are normally not imputable to the
employer,” “when the person conducting the final review serves as the ‘cat’s paw’ of
those who were acting from retaliatory motives, the causal link between the protected
activity and adverse employment action remains intact”) (citations omitted).3
In the February 24 Order, the Court found that Will sufficiently conducted an
independent review of Plaintiff’s alleged misconduct to break the causal link. In so
finding, the Court relied on the Fifth Circuit’s standard for determining “cat’s paw”
liability. Under that standard, the causal link remained intact “where the decision-maker
‘rubber-stamp[ed]’ the firing recommendation of subordinates.” Mato v. Baldauf, 267
F.3d 444, 450 (5th Cir. 2001). However, “the causal link between the protected conduct
and termination is broken where the official with final authority to fire employees
3
As the Fifth Circuit recently explained:
The term cat’s paw is defined as “one used by another as a tool”; it was derived from a
fable conceived by Aesop where a monkey induces a cat by flattery to extract roasting
chestnuts from the fire. After the cat has done so, burning its paws in the process, the
monkey makes off with the chestnuts and leaves the cat with nothing). Under the cat’spaw theory, if employee demonstrates a co-worker with a retaliatory motive had
influence over the ultimate decisionmakers, that co-worker’s retaliatory motive may be
imputed to the ultimate decisionmakers, thereby establishing a causal link between the
protected activity and the adverse employment action.
Gollas v. University Of Texas Health Science Center At Houston, 2011 WL 1834248, at *7 (5th Cir. May
12, 2011) (per curiam) (unpublished) (citing, inter alia, Staub v. Proctor Hospital, 131 S.Ct. 1186, 1190 n.
1 (2011)).
17
conducts an ‘independent investigation’ in the course of reaching his or her decision.”
Id.; see also Gee, 289 F.3d at 346 (“The ultimate question, therefore, is whether the
employee can demonstrate that others had influence or leverage over the official
decisionmaker.”) (citations omitted). Applying that standard, the Court in the February 24
Order held that, although Haman had some influence over Will, Will’s independent
investigation was sufficiently robust to break the causal chain. For example, the Court
noted that Will wrote a seventeen-page letter to Plaintiff explaining the reasons for the
decision, and that Will added a charge of lying under oath that had not been
recommended by Haman.
A few days after the February 24 Order, the Supreme Court issued its opinion in
Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011). Plaintiff moved to reconsider this
aspect of the Court’s holding on the basis that Staub altered the governing legal standard.
Staub concerned a claim for discrimination in violation of the Uniformed Services
Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4301, et
seq. The plaintiff argued that, although the decisionmaker had no hostility to the
plaintiff’s military obligations, two of the plaintiff’s supervisors did, and the
decisionmaker was influenced by their hostility. Staub, 131 S.Ct. at 1189-90. The
Supreme Court rejected the Seventh Circuit’s standard, which held that a “‘cat’s paw’
case could not succeed unless the nondecisionmaker exercised such ‘singular influence’
over the decisionmaker that the decision to terminate was the product of ‘blind reliance.’”
Id. at 1190 (quoting Staub v. Proctor Hospital, 560 F.3d 647, 659 (7th Cir. 2009)).
Instead, the Supreme Court held, “if a supervisor performs an act motivated by
antimilitary animus that is intended by the supervisor to cause an adverse employment
18
action, and if that act is a proximate cause of the ultimate employment action, then the
employer is liable under USERRA.” Id. at 1194. The Supreme Court also rejected “a
hard-and-fast rule” that an independent investigation by the decisionmaker breaks the
causal link, explaining:
[I]f the employer’s investigation results in an adverse action for reasons
unrelated to the supervisor’s original biased action (by the terms of
USERRA it is the employer’s burden to establish that), then the employer
will not be liable. But the supervisor’s biased report may remain a causal
factor if the independent investigation takes it into account without
determining that the adverse action was, apart from the supervisor’s
recommendation, entirely justified.
Id. at 1193. Thus, Staub overturned the Fifth Circuit’s legal standard for cat’s paw
liability, at least to the extent that it dictated that an independent investigation
automatically broke the causal chain, and to the extent that it required a showing that the
decisionmaker “rubberstamped” the recommendation of the retaliatory actor.
Although Staub concerned USERRA, the Supreme Court noted that the statutory
language is “very similar to Title VII.” Id. at 1191. Both statutes prohibit employment
actions where discrimination based on a protected characteristic is “a motivating factor”
in the employment action. Id. at 1190-91. Defendant does not dispute that Staub applies
generally to Title VII claims, but instead argues that it does not apply to Title VII
retaliation claims because the retaliation provision of Title VII does not contain the
“motivating factor” language. See 42 U.S.C. § 2000e-3. Moreover, Defendant argues,
Congress amended Title VII in 1991 to add the “motivating factor” language to Section
2000e-2(m) (which governs discrimination), but did not add that language to Section
2000e-3.
19
However, as Defendant acknowledges, the Fifth Circuit has made clear that,
notwithstanding the difference in statutory language, a plaintiff may bring Title VII
retaliation claims under a “mixed motive” theory of liability. Smith v. Xerox Corp., 602
F.3d 320, 328-30 (5th Cir. 2010); see also Sherrod v. American Airlines, Inc., 132 F.3d
1112, 1122 (5th Cir. 1998) (“In order to establish the causal link . . . , the evidence must
show that the employer’s decision to terminate was based in part on knowledge of the
employee’s protected activity.”) (emphasis added). “[T]he kind of proof necessary for
either discrimination or retaliation claims should be the same,” and so mixed-motive
liability in a retaliation case may be proven with circumstantial evidence. Smith, 602 F.3d
at 331-32. Defendant argues that, because Plaintiff has not previously invoked the mixedmotive theory in this case, she may not do so at this stage in litigation. But the Fifth
Circuit has rejected such a broad waiver rule in this context:
[A] case need not be “correctly labeled as either a ‘pretext’ case or a
‘mixed-motives’ case from the beginning in the District Court” because
the distinction often will not be known to the plaintiff prior to discovery.
Instead, “[a]t some point in the proceedings, of course, the District Court
must decide whether a particular case involves mixed motives.”
Smith, 602 F.3d at 333 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 247 n.12
(1989)). “Put another way, if the district court has before it substantial evidence
supporting a conclusion that both a legitimate and an illegitimate (i.e., more than one)
motive may have played a role in the challenged employment action, the court may give a
mixed-motive instruction.” Id.
The Fifth Circuit recently applied the Staub inquiry in a Title VII retaliation case,
affirming a grant of summary judgment because there was no evidence that the nondecisionmaking supervisor was motivated by retaliatory animus. Gollas v. University Of
20
Texas Health Science Center At Houston, 2011 WL 1834248, at *7 (5th Cir. May 12,
2011) (per curiam) (unpublished). Likewise, district courts in this and other districts have
already applied Staub in the Title VII retaliation context. See, e.g., Ridley v. Harris
County, 2011 WL 1485661, at *7 (S.D. Tex. Apr. 19, 2011); Ordogne v. AAA Texas,
LLC, 2011 WL 1157338, at *9-10 (S.D. Tex. Mar. 28, 2011); Palermo v. Clinton, 2011
WL 1261118, at *7 (N.D. Ill. Mar. 31, 2011).4 Based on the settled precedent allowing
mixed-motive retaliation claims under Title VII, the Court agrees with those courts, and
holds that Staub provides the legal standard for the cat’s paw theory in Title VII
retaliation claims. Thus, the Court must determine whether Haman’s allegedly retaliatory
actions were a proximate cause of Will’s ultimate decision to terminate Plaintiff.
Applying this standard, the Court finds that factual issues remain as to whether
Haman’s actions were a proximate cause of Plaintiff’s termination. “Proximate cause
requires only ‘some direct relation between the injury asserted and the injurious conduct
alleged,’ and excludes only those ‘link[s] that are too remote, purely contingent, or
indirect.’” Staub, 131 S.Ct. at 1192 (quoting Hemi Group, LLC v. City of New York, 559
U.S. 1, ----, 130 S.Ct. 983, 989 (2010)). Haman drafted the recommendation to OPR to
investigate Plaintiff, along with an investigation report that included an analysis of the
Douglas factors. Although Haman’s conclusions in those documents were approved by
two other officials in the Houston office before the documents were sent to OPR, those
officials relied in part on Haman’s investigation of Plaintiff (in addition to relying on
information from two assistant SACs and speaking to Dr. Barrum). (Beverly Dep. at 7-8,
13-14.) OPR then conducted an investigation of Plaintiff, and hear arguments from
4
The Court is not aware of any case that has adopted Defendant’s position that Staub does not apply to
Title VII retaliation cases.
21
Plaintiff in writing and at a hearing. (Doc. No. 21, Ex. A.)5 Will then reviewed the entire
investigative file, including the documents from Houston, the Inspection Division’s
report, and arguments made by Plaintiff, and issued a seventeen-page letter to Plaintiff
describing the reasons for her decision. (Doc. No. 21, Ex. B.) Based on this evidence, the
Court cannot determine as a matter of law that Haman’s recommendations were not a
proximate cause of Will’s ultimate decision. Even though FBI employees took additional
investigative steps beyond Haman’s recommendations, a reasonable jury could still find
that Haman’s actions were sufficiently influential to constitute a proximate cause. See
Staub, 131 S.Ct. at 1192 (“The decisionmaker’s exercise of judgment is also a proximate
cause of the employment decision, but it is common for injuries to have multiple
proximate causes.”) (emphasis in original).
Moreover, Plaintiff submits additional evidence with the Motion to Alter
Judgment that makes her cat’s paw argument significantly stronger.6 Specifically,
Plaintiff now presents to the Court a 24-page addendum that she alleges Haman
submitted with his recommendation to dismiss Plaintiff.7 (Doc. No. 26, Ex. 4.) The
5
Plaintiff moves for the Court to strike the evidence Defendant presented as exhibits to his reply brief on
the grounds that they amount to a second summary judgment motion made after the deadline for dispositive
motions and without leave of the court. (See Doc. No. 22, at 1-2.) The Court finds it appropriate to consider
the exhibits, as they respond to arguments presented in Plaintiff’s response brief, and because Plaintiff has
had the opportunity to present a sur-reply responding to the new evidence.
6
Defendant objects that this evidence is not newly discovered and so cannot be raised in a Rule 59(e)
motion. The Fifth Circuit has held that a Rule 59(e) motion “is not the proper vehicle for rehashing
evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.”
Templet v. HydroChem Inc., 367 F.3d 473, 478-79 (5th Cir. 2004). “Rather, Rule 59(e) ‘serves the narrow
purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered
evidence.’” Id. at 479 (quoting Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). Although
this evidence was produced to Plaintiff in discovery, it was among several thousand pages of documents, so
it is possible that Plaintiff’s counsel would not have discovered it despite significant efforts. Moreover,
even if the evidence would have been somewhat relevant at the time of summary judgment briefing, its full
significance could not have been known prior to the Staub ruling. Accordingly, the Court finds it
appropriate to consider this evidence.
7
It is difficult to tell from the document where it originated. A header on each page says, “EC from SAC,
Houston to Inspection Division dated 01/03/05,” but also says “ADDENDUM: OPR ADJUDICATION
UNIT I (OPR AU I), DMM: DMM 12/12/05.” In addition, there is a section titled “OPR ANALYSIS.” The
22
addendum is very similar to Will’s letter explaining the reasons for Plaintiff’s
termination—which was sent sixteen months after the addendum. Will’s letter tracks the
organization and language of the addendum. Numerous phrases are identical, including
paraphrased summaries of third-parties’ statements. The order of paragraphs, and the
order of sentences within each paragraph, are almost identical. People are referred to
differently—for example, the addendum refers to “SA Baldwin” while Will refers to
“you”; the addendum refers to FBI employees by name while Will uses only their job
title. Some portions of the addendum are omitted in Will’s, and some new portions are
added. However, the documents are substantially similar, and it would be difficult to
conclude that Will did not base her letter on the addendum. This severely undercuts
Defendant’s argument that Will engaged in a robust independent review of the charges,
as she essentially followed the factual conclusions, reasoning, and citation of evidence
used in the addendum. In addition, the addendum contains a lying-under-oath charge. In
the February 24 Order, the Court relied in part on the fact that Will added that charge
based on her own investigation; the addendum undercuts that argument as well. In sum,
the addendum raises additional issues of fact as to whether Haman’s actions were a
proximate cause of Will’s ultimate decision to fire Plaintiff.
Accordingly, Plaintiff has established a prima facie case of retaliation for
purposes of the summary judgment motion.
B. LEGITIMATE NON-RETALIATORY REASONS
Douglas factors analysis is different in the addendum and in Haman’s investigation report, and the
addendum ends with the statements, “OPR is proposing that SA Baldwin be dismissed from the rolls of the
FBI” and “RECOMMENDATION: That the attached proposed dismissal letter be approved and
forwarded.” Accordingly, it is unclear to the Court whether the addendum was written by Haman or by
someone in OPR. However, Defendant did not question Haman’s authorship in his response to the Motion
to Alter or at oral argument. At the very least, the authorship is a question of fact for the jury. Furthermore,
genuine issues of material fact would remain even if the Court did not consider this evidence.
23
Defendant argues that, even if Plaintiff can establish a prima facie case of
retaliation, the FBI had legitimate, non-retaliatory reasons for terminating Plaintiff’s
employment.
The Court finds that Defendant has met his burden to “clearly set forth, through
the introduction of admissible evidence, the reasons for the plaintiff’s rejection”
sufficiently to “raise[] a genuine issue of fact as to whether it discriminated against the
plaintiff.” See Burdine, 450 U.S. at 254. The FBI went through its internal investigation
process and found that Plaintiff had 1) conducted an unauthorized investigation of an
intern; 2) engaged in unprofessional conduct and unauthorized disclosure by released
information about the intern to his university without authority; 3) engaged in
insubordination by failing to comply with a direct order to discontinue any further inquiry
or investigation regarding the intern; and 4) lied under oath. (See Doc. No. 17, Ex. 9.)
Furthermore, Plaintiff had previously been suspended twice for violations of FBI
policies, and Will, the Assistant Director of OPR, concluded that Plaintiff’s behavior
“reflects a patterned disregard for Bureau rules and regulations.” (Id. at 2899.) Will found
that Plaintiff’s “misconduct in this matter seriously calls into question [her] ability to
exercise the sound professional judgment required of an FBI Special Agent.” (Id. at
2894.) These reasons are certainly sufficient to “raise an issue of fact” about whether the
FBI’s dismissal of Plaintiff was retaliatory.
C. PRETEXT
Because Defendant has met his burden to present evidence of a legitimate nonretaliatory reason for Plaintiff’s dismissal, the burden shifts back to Plaintiff to prove that
Defendant’s “stated reason for the adverse action was merely a pretext for the real,
24
discriminatory purpose.” Gee, 289 F.3d at 345. Plaintiff must prove that “that ‘but for’
the discriminatory purpose [s]he would not have been terminated.” Pineda v. United
Parcel Service, Inc., 360 F.3d 483, 487 (5th Cir. 2004); see also Long v. Eastfield
College, 88 F.3d 300, 305 n.4 (5th Cir. 1996) (“[E]ven if a plaintiff’s protected conduct is
a substantial element in a defendant’s decision to terminate an employee, no liability for
unlawful retaliation arises if the employee would have been terminated even in the
absence of the protected conduct”).
First, Plaintiff argues that she was treated differently than similarly-situated FBI
employees. See Bryant v. Compass Group USA Inc., 413 F.3d 471, 478 (5th Cir. 2005)
(“Disparate treatment of similarly situated employees is one way to demonstrate unlawful
discrimination and retaliation.”) “To raise an inference of discrimination, the plaintiff
may compare his treatment to that of nearly identical, similarly situated individuals.” Id.
“[A] plaintiff must show that the employer gave preferential treatment to another
employee under nearly identical circumstances; that is, that the misconduct for which the
plaintiff was discharged was nearly identical to that engaged in by other employees.”
Okoye v. University of Texas Houston Health Science Center, 245 F.3d 507, 514 (5th Cir.
2001) (citations omitted). “Nearly identical” is not, however, “synonymous with
‘identical.’” Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (5th Cir. 2009); see
also id. (“a requirement of complete or total identity rather than near identity would be
essentially insurmountable, as it would only be in the rarest of circumstances that the
situations of two employees would be totally identical”).
In this case, Plaintiff has not demonstrated that employees under nearly identical
circumstances were treated differently. OPR’s decision to dismiss Plaintiff was based in
25
part on her two prior suspensions for violations of FBI rules, and on the conclusion that
her conduct reflected “a patterned disregard for Bureau rules and regulations.” (Doc. No.
17, Ex. 9, at 2899.) Plaintiff has presented no evidence that the agents she claims are
similarly situated had any record of past misconduct or had been found to have shown a
“patterned disregard” for FBI rules. It cannot be said that employees with no past record
of misconduct or suspensions are situated nearly identically to Plaintiff. See Lee, 574
F.3d at 261 (“Each employee’s track record at the company need not comprise the
identical number of identical infractions, albeit these records must be comparable.”)
(emphasis added).8 Accordingly, Plaintiff has failed to demonstrate pretext based on
similarly-situated employees being treated differently.
However, Plaintiff has raised a genuine issue of material fact as to whether
Haman’s retaliatory actions were a “but for” cause of Plaintiff’s termination. The Fifth
Circuit has held that “even an incorrect belief that an employee’s performance is
inadequate constitutes a legitimate, non-discriminatory reason.” Little v. Republic
Refining Co., Ltd., 924 F.2d 93, 97 (5th Cir. 1991); see also LeMaire v. Louisiana Dept.
of Transp. and Development, 480 F.3d 383, 391 (5th Cir. 2007) (“Simply disputing the
underlying facts of an employer’s decision is not sufficient to create an issue of
pretext.”). Rather than “try[ing] in court the validity of good faith beliefs as to an
employee’s competence[,] [m]otive is the issue.” Little, 924 F.2d at 97. Even if Will had
a good-faith belief that Plaintiff had committed the misconduct for which she was
8
The exhibit Plaintiff relies on lists only one allegation of misconduct for each individual—for example,
providing false information, disclosure of classified information, or unprofessional conduct. Even for
Plaintiff, it lists only “unauthorized disclosure of sensitive information” although OPR also found her to
have engaged in insubordination and lying under oath. Thus, the Court cannot tell based on that evidence
whether even the final instances of misconduct by Plaintiff and the others are “nearly identical.” This lack
of detail may be due solely to a shortcoming in FBI record-keeping. Even assuming that the final instances
of misconduct are identical, however, the lack of previous misconduct by others is fatal to Plaintiff’s claim
that the other employees were similarly situated.
26
charged, though, there is evidence that Haman was motivated by a discriminatory animus
when he initiated and influenced the termination process. See Ordogne, 2011 WL
1157338, at *10.
As discussed above, Plaintiff has presented evidence that Haman initiated the
investigation against Plaintiff and prepared reports recommending that she be terminated.
Plaintiff has also presented evidence that Haman was motivated by intent to retaliate
against Plaintiff. There is no indication in the evidence that Plaintiff would have been
investigated if it had not been for Haman’s initiation of those proceedings. Accordingly,
the Court cannot conclude as a matter of law that Haman’s retaliatory actions were not a
“but for” cause of Plaintiff’s termination.
The Court recognizes the potentially broad implications of this line of reasoning.
For example, in theory, no matter how severe a plaintiff’s misconduct, and no matter how
clear the evidence implicating the plaintiff, summary judgment would never be
appropriate if there was evidence that the employee who happened to initiate the
investigation had retaliatory intent. There may be cases in which it will be clear as a
matter of law that the retaliation was not a “but for” cause of the termination—for
example, if the retaliating employee played a very minor role in the process, and it was
inevitable that the plaintiff would be investigated and terminated for misconduct.
However, this is not such a case.9 At least where the decisionmaker was influenced by the
investigations or recommendations of the retaliating employee, and where it is not clear
that the plaintiff would otherwise have been investigated for the misconduct, summary
judgment is inappropriate. Although the conduct for which Defendant maintains that
9
At oral argument, neither party could suggest a simple principle with which to draw this line. The Court
need not decide today where the line is drawn.
27
Plaintiff was terminated seems quite bizarre and problematic for a government official in
Plaintiff’s position, it remains a question of fact for the jury whether, but for Haman’s
retaliatory conduct, Plaintiff would have been investigated and terminated.
Accordingly, the Court finds that factual issues remain as to whether the reasons
given for Plaintiff’s termination were merely a pretext for the real, retaliatory reasons, so
summary judgment is denied.
V.
CONCLUSION
For the reasons discussed in this order, the Court DENIES Defendant’s Motion
for Summary Judgment. The Court will subsequently set a new trial date.
IT IS SO ORDERED.
SIGNED this 25th day of May, 2011.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
28
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?