United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, United States District Court Senior
case is before the Court on cross-motions for summary
judgment. DNs 57, 58. Both motions are ripe for review.
Examining the issues, the Court finds that the Defendant has
asserted a legitimate, nondiscriminatory reason for
Plaintiff's termination which Plaintiff has not
demonstrated to be pretextual, that Plaintiff's
whistleblower claim is preempted by Title VII, and that the
Merit Systems Protection Board did not exceed its authority.
As a result, the Court will grant the Defendant's motion
as to all claims in the complaint.
moving for summary judgment must show that “there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986). A genuine issue for trial exists
when “there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Id. In undertaking this analysis, the
Court must view the evidence in the light most favorable to
the non-moving party. Scott v. Harris, 550 U.S. 372,
party moving for summary judgment bears the burden of
establishing the nonexistence of any issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
They can meet this burden by “citing to particular
parts of materials in the record” or “showing
that the materials cited do not establish the . . . presence
of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). This
burden can also be met by demonstrating that the nonmoving
party “fail[ed] to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S.
Factual and Procedural Background
January 1998, Lorraine Carrethers-a black woman-began working
as an IT Specialist for the Department of the Army Human
Resources Command for the Adjutant General Directorate at
Fort Knox, Kentucky. DN 29 at 2. She was promoted to a
supervisory position in 2004, where she remained until her
termination in 2014 (which is at issue in this case).
Id. In 2012, she began reporting to Theresa McGuire
and David Cathell. Id. Cathell was the Chief of the
Operations and Services Division for the Adjutant General
Directorate at Fort Knox and served as Carrethers's
second-line supervisor. McGuire was the Deputy Chief and
oversaw the office when Cathell was absent. According to
Carrethers, those two began a pattern of sexual harassment,
race-based discrimination, and retaliation leading to her
first complaint came in February 2013, when she complained
both informally and formally about McGuire and Cathell to the
Army's Equal Employment Opportunity (“EEO”)
office. DN 57-2. She alleged that they had made offensive
comments regarding her job performance, displayed irrational
and unpredictable fits of rage toward her, and retaliated
against her for complaining. Id. at 2-3. She
believed these actions were designed to create a hostile work
environment based on her race. Between her informal and
formal EEO complaints, Cathell issued Carrethers an adverse
counseling statement for failing to follow instructions
regarding a purchase order. DN 62-1. This act gave rise to
the included retaliation claim. Ultimately, after her
termination, the EEO complaint resulted in a settlement and
accompanying agreement where, in exchange for a lump sum
monetary amount, Carrethers agreed to waive all other
remedies and claims related to the EEO matters and accept the
settlement as no-fault. DN 13 at 2 (sealed).
next informal complaint came in April 2013. DN 57-4. In it,
she alleged that she had been “constantly bullied or
harassed” by McGuire since September 2012. Id.
at 2. Specifically, she alleged that McGuire said
“I'll have the SGM do you!” which Carrethers
interpreted as a threat of physical violence. Id.
When another employee expressed concern about
Carrethers's health, McGuire allegedly responded
“Good. I hope she dies.” Id. at 3. At
another point, Carrethers alleged that she overheard Cathell
telling another employee that he intended to harm her.
Id. Carrethers also says she was concerned because
McGuire began asking people where she lived, Id. at
2, and Cathell, seeing Carrethers in the parking lot in her
car, allegedly remarked “There she is, now I know what
her car looks like, ” Id. at 4. For all of
these events, Carrethers named other employees as witnesses.
However, when asked, those who were interviewed denied that
the events occurred. DN 57-10 at 2; DN 57-12 at 2; DN 57-14
at 2-3. Out of an abundance of caution, the military police
conducted an investigation. The subsequent report
“revealed that there is no probable cause or evidence
that corroborates any allegations of a criminal intent”
and closed the case as unfounded. DN 57-26 at 6.
final complaint was filed in October 2013 and alleged that
McGuire had sexually harassed her. Specifically, she
complained that: McGuire peeped into the bathroom stall where
Carrethers was urinating; McGuire stated that Carrethers
“liked” her and kept smiling at her; McGuire
winked at her, blew kisses at her and acted provocatively
toward her; and McGuire mocked and belittled Carrethers in
the presence of her co-workers and superiors. DN 1 at 4. To
investigate the allegations, the Army appointed an
investigating officer pursuant to its regulations. DN 57-6.
As part of the investigation, the officer interviewed
fourteen employees who worked with Carrethers, McGuire, and
Cathell. DN 57-7 at 4. In sworn statements, all of them
denied having witnessed any harassment of Carrethers.
See DNs 57-8, 57-9, 57-10, 57-11, 57-12, 57-13,
57-14, 57-15, 57-16, 57-17, 57-18, 57-19. As a result, the
investigating officer determined that Carrethers had
presented “no substantiated facts” to support her
allegations and concluded that Carrethers was “abusing
the system to cover up her inability to perform assigned
duties at her current grade.” DN 57-7 at 4.
March 2014, Carrethers was presented with a Notification of
Proposed Removal which alleged she had made unsubstantiated
and inappropriate remarks against her supervisors. DN
58-5. She was ultimately removed for that reason
on April 9, 2014. DN 58-6. Following her removal, Carrethers
instituted an appeal with the Merit Systems Protection Board
(“MSPB”), alleging that her removal was
retaliatory. DN 57-25. Ultimately, the MSPB upheld her
termination on January 6, 2016. DN 58-7. On February 2, 2016,
Carrethers filed suit, naming the Secretary of the Army in
his official capacity. Her complaint asserts violations of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e et seq., and the Whistleblower Protection Act
(“WPA”), as supplemented by the Whistleblower
Protection Enhancement Act (“WPEA”), 5 U.S.C.
§§ 2302 et seq., and challenges the
decision of the MSPB.
initial matter, the Secretary attempts to revive an estoppel
argument that he has previously conceded was inapplicable.
Moving past that and addressing the retaliation claims, the
Court finds that the Secretary has put forward evidence of a
legitimate, nondiscriminatory reason for terminating
Carrethers's employment which she has been unable to
rebut. As a result, the Court will grant summary judgment on
the Title VII claim. Finding that Title VII preempts the
WPA/WPEA claim, the Court will dismiss that claim as well.