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Carrethers v. Esper

United States District Court, W.D. Kentucky, Louisville

May 31, 2019



          Charles R. Simpson III, United States District Court Senior Judge

         I. Introduction

         This case is before the Court on cross-motions for summary judgment. DNs 57, 58. Both motions are ripe for review. Examining the issues, the Court finds that the Defendant has asserted a legitimate, nondiscriminatory reason for Plaintiff's termination which Plaintiff has not demonstrated to be pretextual, that Plaintiff's whistleblower claim is preempted by Title VII, and that the Merit Systems Protection Board did not exceed its authority. As a result, the Court will grant the Defendant's motion as to all claims in the complaint.

         II. Legal Standard

         A party moving for summary judgment must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A genuine issue for trial exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. In undertaking this analysis, the Court must view the evidence in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007).

         The party moving for summary judgment bears the burden of establishing the nonexistence of any issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). They can meet this burden by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the . . . presence of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). This burden can also be met by demonstrating that the nonmoving party “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

         III. Factual and Procedural Background

         In January 1998, Lorraine Carrethers-a black woman-began working as an IT Specialist for the Department of the Army Human Resources Command for the Adjutant General Directorate at Fort Knox, Kentucky. DN 29 at 2. She was promoted to a supervisory position in 2004, where she remained until her termination in 2014 (which is at issue in this case). Id. In 2012, she began reporting to Theresa McGuire and David Cathell. Id. Cathell was the Chief of the Operations and Services Division for the Adjutant General Directorate at Fort Knox and served as Carrethers's second-line supervisor. McGuire was the Deputy Chief and oversaw the office when Cathell was absent. According to Carrethers, those two began a pattern of sexual harassment, race-based discrimination, and retaliation leading to her termination.

         Carrethers's first complaint came in February 2013, when she complained both informally and formally about McGuire and Cathell to the Army's Equal Employment Opportunity (“EEO”) office. DN 57-2. She alleged that they had made offensive comments regarding her job performance, displayed irrational and unpredictable fits of rage toward her, and retaliated against her for complaining. Id. at 2-3. She believed these actions were designed to create a hostile work environment based on her race. Between her informal and formal EEO complaints, Cathell issued Carrethers an adverse counseling statement for failing to follow instructions regarding a purchase order. DN 62-1. This act gave rise to the included retaliation claim. Ultimately, after her termination, the EEO complaint resulted in a settlement and accompanying agreement where, in exchange for a lump sum monetary amount, Carrethers agreed to waive all other remedies and claims related to the EEO matters and accept the settlement as no-fault. DN 13 at 2 (sealed).

         Carrethers's next informal complaint came in April 2013. DN 57-4. In it, she alleged that she had been “constantly bullied or harassed” by McGuire since September 2012. Id. at 2. Specifically, she alleged that McGuire said “I'll have the SGM[1] 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.

         Carrethers's final complaint was filed in October 2013 and alleged that McGuire had sexually harassed her. Specifically, she complained that: McGuire peeped into the bathroom stall where Carrethers was urinating; McGuire stated that Carrethers “liked” her and kept smiling at her; McGuire winked at her, blew kisses at her and acted provocatively toward her; and McGuire mocked and belittled Carrethers in the presence of her co-workers and superiors. DN 1 at 4. To investigate the allegations, the Army appointed an investigating officer pursuant to its regulations. DN 57-6. As part of the investigation, the officer interviewed fourteen employees who worked with Carrethers, McGuire, and Cathell. DN 57-7 at 4. In sworn statements, all of them denied having witnessed any harassment of Carrethers. See DNs 57-8, 57-9, 57-10, 57-11, 57-12, 57-13, 57-14, 57-15, 57-16, 57-17, 57-18, 57-19. As a result, the investigating officer determined that Carrethers had presented “no substantiated facts” to support her allegations and concluded that Carrethers was “abusing the system to cover up her inability to perform assigned duties at her current grade.” DN 57-7 at 4.

         In March 2014, Carrethers was presented with a Notification of Proposed Removal which alleged she had made unsubstantiated and inappropriate remarks against her supervisors. DN 58-5.[2] She was ultimately removed for that reason on April 9, 2014. DN 58-6. Following her removal, Carrethers instituted an appeal with the Merit Systems Protection Board (“MSPB”), alleging that her removal was retaliatory. DN 57-25. Ultimately, the MSPB upheld her termination on January 6, 2016. DN 58-7. On February 2, 2016, Carrethers filed suit, naming the Secretary of the Army in his official capacity.[3] Her complaint asserts violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and the Whistleblower Protection Act (“WPA”), as supplemented by the Whistleblower Protection Enhancement Act (“WPEA”), 5 U.S.C. §§ 2302 et seq., and challenges the decision of the MSPB.

         IV. Discussion

         As an initial matter, the Secretary attempts to revive an estoppel argument that he has previously conceded was inapplicable. Moving past that and addressing the retaliation claims, the Court finds that the Secretary has put forward evidence of a legitimate, nondiscriminatory reason for terminating Carrethers's employment which she has been unable to rebut. As a result, the Court will grant summary judgment on the Title VII claim. Finding that Title VII preempts the WPA/WPEA claim, the Court will dismiss that claim as well. ...

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