Opinion
Civil Action No. 3:98CV-171-S
April 16, 1999
MEMORANDUM OPINION AND ORDER
This matter is before the court on motion of the Federal Bureau of Investigation, et al. (hereinafter collectively "FBI") to dismiss the complaint or, alternatively, for summary judgment in this Title VII action. The FBI contends that it is entitled to judgment on three bases: (1) The plaintiff, Michael A Mulhall ("Mulhall") has not established a prima facie case of retaliation; (2) The FBI is not Mulhall's employer for Title VII purposes; and (3) Mulhall's claim is untimely. These issues will be addressed seriatim.
A brief rendition of some undisputed facts will be helpful to an understanding of this opinion.
In March of 1994, Mulhall, a Jefferson County Police Officer, was assigned to the Louisville Fugitive Task Force ("Task Force"), a joint task force comprised of 2 special agents from the FBI Louisville Field Office, one Jefferson County Police Department ("JCPD") officer, and one Louisville Police Department ("LPD") officer. The guidelines for operation of this task force were memorialized in a Memorandum of Understanding entered into between the agencies. The Memorandum provided that operational and day to day supervision of investigative activities and direction would be the responsibility of the FBI. It also provided that continued assignment to the Task Force would be based upon performance and would be at the discretion of the respective agencies. See Memorandum of Understanding, ¶¶ 3, 10. Mulhall served on the Task Force from March of 1994 until his removal in March of 1995.
The Task Force assignment required a commitment of forty hours per week plus overtime. Mulhall was required to fill out time sheets and turn them in, with any required documentation, to his immediate supervisor, Special Agent James Ray ("Ray"). Mulhall began having problems with his superiors at the FBI over his documentation of overtime, sick and vacation time in mid-1994. Mulhall claimed in excess of the amount of overtime authorized by JCPD, and his Task Force and JCPD time sheets often did not agree. In April of 1994, Ray began taking notes on the whereabouts of Mulhall during work hours. He suspected that Mulhall was not accurately documenting overtime and sick time. On a number of occasions Mulhall was questioned about his time sheets by Ray or Supervisory Special Agent Hal G. Metcalfe ("Metcalfe"). The matter appears to have come to a head around November of 1994. Lieutenant Douglas Hawkins, Mulhall's immediate supervisor at JCPD, discussed the problem of documenting overtime with Metcalfe. JCPD limited the amount of monthly overtime which officers could claim. This amount differed from the amount authorized for Task Force members. It was apparently agreed that Mulhall would accrue and take compensatory time in lieu of taking excessive amounts of overtime. Mulhall was asked to document the way in which he would account for and use compensatory time. Mulhall drafted the requested memorandum, and Ray assisted him in editing it. In December of 1994 the memorandum was submitted to Metcalfe. No documentation was provided by Mulhall's JCPD supervisor regarding this arrangement. The accrual of compensatory time was not authorized under JCPD policy.
There is conflicting evidence in the record regarding when Metcalfe became concerned about Mulhall's record keeping. In his statement, Metcalfe stated that he talked with Chief Jones about Mulhall in October or November of 1994. He stated that Jones told Metcalfe to "handle it." This statement appears to be consistent with the testimony of Doug Hawkins regarding his intervention in November, and the testimony of Ray and Mulhall regarding Mulhall's memorandum which was submitted in December of 1994. Zaboronak and Smith have related differing accounts of what was reported to them by Metcalfe. The discrepancies are immaterial to this decision inasmuch as no action was, in fact, taken against Mulhall until March of 1995.
On February 27, 1995 a letter written by Ray, and edited and signed by Metcalfe, was taken to JCPD requesting a review and audit of Mulhall's time and attendance records for the period March 24, 1994 to February 21, 1995. The letter stated that the audit was requested in order "to prepare for a financial audit of the overtime reimbursement records which will be conducted by the Criminal Investigative Division, Federal Bureau of Investigation Headquarters (FBIHQ), Washington, D.C. . . and it is requested that this matter be conducted in a timely manner to ensure that all reimbursement invoices for overtime earned by Detective Mulhall can be submitted to the Criminal Investigative Division, FBIHQ, in an expeditious manner." No audit had been scheduled or requested at the time the letter was written. No financial audit by FBIHQ was performed. On March 6, 1995, Mulhall was informed by letter from the JCPD Chief of Police that he was being removed from the Task Force, effective March 16, 1995. Based upon information provided by the FBI to Acting Chief of Police Billy Oates, an internal affairs investigation and a criminal investigation were conducted concerning Mulhall's time records. There were approximately sixty-one allegations of false documentation made against Mulhall. Upon investigation, the allegations were not found to be substantiated. See Oates Affidavit; Zaboronak Affidavit. Mulhall was cited with one violation for taking a sick day in December of 1994 which should have been reported as a vacation day. The request for audit which resulted in the investigations and which presumably prompted his removal from the Task Force is the adverse employment action which Mulhall alleges he suffered at the hands of the FBI.
Mulhall claims that the FBI requested the audit of his time records when it discovered that he was listed as a witness in an EEO complaint filed by Jeanne James, a former Special Agent and co-worker. Both James and Mulhall have stated that in September of 1994 James asked Mulhall if she could list him as a witness. He responded that "he would not volunteer, but if asked, he would tell the truth." James affidavit, pg. 4. On February 21, 1995 a package containing James' complaint, addressed to Special Agent Pulley, was delivered to the Louisville FBI office. Pulley was an EEO investigator assigned to the Memphis, Tennessee Division. The package was received in the Louisville Office by David J. Beyer ("Beyer"), Supervisory Special Agent and Chief Deputy Counsel. Beyer opened the package on February 24, 1995, copied the complaint, and sent the copy to Samuel Deshazer, James' attorney, per the directions of Pulley. Beyer copied the document again a short time later when Deshazer informed him that he had not received it. Mulhall alleges that Metcalfe became aware of the inclusion of his name in James' complaint at the time the document was in the Louisville FBI office.
In its motion, the FBI cites to numerous Affidavits, statements, and documents which are taken from the record of investigation and the agency decision file. These being matters outside the pleadings, the motion will be treated as one for summary judgment. Fed.R.Civ.P. 12(b); 56.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S. Ct. 1598, 16 L. Ed. 2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
Mulhall contends that the inclusion of his name on James' witness list was the catalyst for reprisals against him by the FBI. Beyer has denied having read the document and has denied having passed information from it on to Metcalfe. Metcalfe has denied having known that Mulhall was listed as a witness for James. Mulhall urges that a genuine issue of material fact exists with respect to the truth of these statements inasmuch as the letter to Chief Jones, the supposed act of retaliation, occurred within three days after the document was copied by Beyer at the FBI office. The FBI, on the other hand, would have the court conclude that the timing was mere coincidence.
42 U.S.C. § 2000e-3(a) provides, in pertinent part,
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
This section is made applicable to the FBI by 42 U.S.C. § 2000e-16. See also, Perez v. FBI, 707 F. Supp. 891 (W.D.Tx. 1988), supplemented by, 714 F. Supp. 1414, affm'd without opinion, 956 F.2d 265 (5th Cir. 1992).
Mulhall must establish a prima facie case of discrimination to clear the first hurdle in this Title VII action. He must show that "(1) he engaged in a protected activity; (2) an adverse employment decision occurred; and (3) there was a causal connection between the protected act and the adverse employment decision." Williams v. The Nashville Network, 132 F.3d 1123, 1131 (6th Cir. 1997). He contends that he engaged in a protected activity when he was listed as a witness, and that he was subjected to an adverse employment action as a result of this participation in the EEO process. We find that Mulhall has shown that he "participated in any manner in an investigation, proceeding, or hearing." 42 U.S.C. § 2000e-3(a).
The protection afforded employees by § 2000e-3(a) has been given a broad reading:
Title VII specifically protects assistance and participation . . . This indicates the exceptionally broad protection intended for protesters of discriminatory employment practices. The protection of assistance and participation in any manner would be illusory if employer could retaliate against employee for having assisted or participated in a Commission proceeding.
Smith v. Columbus Metropolitan Housing Authority, 443 F. Supp. 61, 65 (S.D.Ohio 1977), quoting, Pettway v. American Cast Iron Pipe Company, 411 F.2d 998, 1006 (5th Cir. 1969). As noted in Booker v. Brown Williamson Tobacco Co., 879 F.2d 1304, 1313 (6th Cir. 1989), "The purpose of the statute is to protect access to the machinery available to seek redress for civil rights violations and to protect the operation of that machinery once it has been engaged." "Participation" and "assistance" are terms which have been applied broadly so as to preserve and cultivate the spirit and purpose of Title VII.
In the case of Kaible v. U.S. Computer Group, Inc., 27 F. Supp.2d 373 (E.D.N.Y. 1998) the plaintiff was found to have stated a claim of retaliation for having participated in an investigation. In that case, Kaible (the plaintiff) met with U.S. Computer's (the employer) attorneys and told them that he was a witness to the sexual harassment alleged in a co-worker's EEO charge, and he told the attorneys, as well as supervisors and co-workers, that he planned to tell the truth about it. In the case before us, James approached Mulhall, and he indicated to her that he did not wish to volunteer assistance. He stated, however, that if he were asked, he would tell the truth. James then listed his name in her complaint, as a result of that response. If anyone at the Louisville FBI office saw the EEO complaint, a point which is hotly contested, they would have seen of Mulhall's name on the witness list. A natural and reasonable inference to be drawn from the listing of his name would have been that Mulhall would testify in James' favor in the matter. Complainants do not ordinarily list witnesses who would testify detrimentally to their interests. Whether Mulhall would have provided information favorable to James or whether he would have been a willing witness is immaterial to his status as a participant in the process, however. His participation in the process began at the time James included his name in her complaint.
In Smith v. Columbus Metropolitan Housing Authority, supra., the court found that an employee's refusal to sign an affidavit in support of the employer's version of the discharge of three co-workers constituted participation in an investigation, reasoning:
If an employee has personal knowledge which is relevant to a charge filed with a Title VII agency, his first participation in the investigation will likely result when he is approached by one of the interested parties: the charging party, the respondent, or the Title VII agency.
Once a charge is filed, the charging party is no longer simply an employee, and the respondent is no longer simply an employer. Both are parties to a Title VII agency proceeding, and both have lawful avenues provided by statute, rule, or regulation by which to discover information pertinent to the pending proceeding, cf. Plumbers Union, 311 F. Supp. at 467-68. When an employee is approached on an informal, ex parte basis by one of the parties to such a proceeding and is asked to relate personal knowledge concerning the subject matter of the charge, that employee must decide whether to cooperate on such basis with the inquiring party. The question is not whether the employee's version of pertinent facts can ever be developed, because relevant, unprivileged testimony can be compelled before a Title VII agency, see 42 U.S.C. § 2000e-9; 29 U.S.C. § 161; R.C. 4112.04(B)(3); R.C. 4112.11(A). Rather, the question is whether the employee will cooperate on an informal basis by orally relating his personal knowledge or by signing a sworn or unsworn statement.
Because anything the employee relates is potentially impeachment material should he later change his version of the events, the employee's decision whether to cooperate is one which affects his participation in the pending proceeding. Whether an employee agrees or refuses to cooperate, his participation in the pending Title VII investigation and proceeding has begun.
Mulhall must establish that he suffered an adverse employment action. The FBI does not deny that it brought its concerns over Mulhall's time sheets to the attention of JCPD via the February 27, 1995 letter to Chief Jones. See Metcalfe Affidavit. The FBI states that this act does not constitute an adverse employment action.
The FBI contends that it did not take an adverse employment action against Mulhall because it did not have the power to do so. It argues that the only action adverse to Mulhall was the decision to conduct an investigation of the time sheet matters, a decision which rested solely with JCPD. This ignores the realities of the relationship between the two agencies. First, the Memorandum of Understanding indicated that once an officer or agent was assigned to the Task Force, continued assignment would be based upon performance. Since the FBI had the responsibility for day-to-day supervision and management of Task Force operations, communication regarding the performance of Task Force members could only come from the FBI. Thus the FBI was the only agency in a position to influence the decision regarding Mulhall's continued assignment to the Task Force. Metcalfe acknowledged as much in his Declaration at ¶ 11: "Although I had no say in the decision making process of who was assigned or terminated from the Task Force, I did on occasion report and discuss any concerns I had relating to Officer Mulhall to the Chief of Police Colonel Leon Jones, Sr."
The FBI also urges that the February 27, 1995 letter should viewed as a routine matter, rather than an adverse employment action. The letter does not specifically request that a criminal or internal affairs investigation be conducted. The letter does request an audit of the time sheets and verification of their accuracy. It is true that the letter does not contain specific allegations of wrongdoing nor does it request any investigation other than the audit itself. It did, however, introduce the problematic time sheets into the hands of JCPD. The sheets were provided with the letter. It sought a review and explanation which necessitated an investigation by JCPD into the matter.
Metcalfe did not provide JCPD a copy of Mulhall's December 16, 1994 memorandum in which he had attempted to explain the way in which he would account for overtime. Additionally, shortly after the delivery of the letter, it was made clear to Acting Chief Oates that Mulhall was suspected of falsifying his time sheets, and criminal and internal affairs investigations were, in fact, commenced. See Oates Affidavit; Zaboronak Affidavit; March 6, 1996 Report of Joseph M. Smith, EEO Counselor; Metcalfe Affidavit.
We conclude that the steps taken by the FBI to bring its suspicions of fraud to the attention of JCPD constituted an adverse employment action. At the very least, the FBI took deliberate steps to put into motion the mechanism whereby Mulhall was removed from the Task Force and was subjected to investigation for wrongdoing.
Finally, Mulhall must establish a causal connection between the protected activity and the adverse employment action. He must show that the FBI's actions and the listing of his name as a witness for James were not wholly unrelated. See, EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir. 1997). An inference of causal connection sufficient to establish a prima facie case can sometimes be drawn from the temporal proximity of events. See, Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993).
The FBI contends that neither Metcalfe nor Ray knew that Mulhall was listed by James as a witness. Metcalfe and Ray unequivocally deny any such knowledge at the time the letter to Chief Jones was drafted and sent. Beyer has denied having read James' complaint, denied that he knew Mulhall was identified as a witness until late February of 1996, and denied that he had spoken about the complaint with anyone. Beyer Affidavit. There is no direct evidence to controvert their denials.
Mulhall suggests that the circumstantial evidence in the case calls into question the veracity of the agents' denials that they knew that James had identified him as a witness. In Goldsmith, supra., the court stated:
The City first challenges Goldsmith's prima facie case as insufficient to establish the "causal link" between her protected statement to Councilman Harris and her transfer to the City Library. The City argues that Goldsmith failed to establish causation because she did not prove that mayor Shell even knew of her conversation with Councilman Harris at the time of her transfer. In order to establish the requisite "causal link" required as part of a prima facie case, a plaintiff need only establish that "the protected activity and the adverse action were not wholly unrelated." See EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72(11th Cir. 1993); Bigge v. Albertsons, Inc., 894 F.2d 1497, 1501 (11th Cir. 1990); Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.), cert. denied, 474 U.S. 981, 106 S.Ct. 385, 88 L.Ed.2d 338 (1985). At a minimum, plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action. See, e.g., Weaver, 922 F.2d at 1525; Simmons, 757 F.2d at 1189. The defendant's awareness of the protected statement, however, may be established by circumstantial evidence. Cf. Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1183 (2d Cir. 1992) (quoting Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655, 659 (7th Cir. 1991) ( en banc)) (noting that "all knowledge is inferential"), cert. denied, ___ U.S. ___, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). Goldsmith, 996 F.2d at 1163. See also, EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th Cir. 1997), and Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994):
Other courts have concluded that the discharge of an employee soon after the employee engages in protected activity is strongly suggestive of retaliatory motive and thus indirect proof of causation. See e.g. Oliver. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988).
Mulhall contends that the question regarding his time records was resolved with the FBI with the intervention of his JCPD superior, Hawkins, and was detailed in his memorandum to Metcalfe. He states that there were no further discussions concerning the issue from December through February. Beyer opened the package containing James' complaint on February 24, 1995. On February 27, 1995, the letter from Metcalfe requesting the audit was sent to Chief Jones. The basis stated in the letter for the request was an upcoming FBIHQ audit which was not scheduled and was not performed. None of the allegations involving the purported falsification of documents was found to be substantiated upon investigation. In fact, the time sheets provided by the FBI were found by JCPD to be "internally inconsistent," there being some "double sets of the sheets which did not match." See Zaboronak Affidavit. There were alterations on many of them which Ray admitted to having made, sometimes with and sometimes without Mulhall's knowledge. Zaboronak Affidavit; Report of Joseph Smith; Ray Affidavit.
We conclude that the circumstances surrounding the initiation of the investigation and Mulhall's removal from the Task Force, when viewed as a whole, raises an inference of retaliation by the FBI sufficient to establish a prima facie case of causal connection.
We note that our findings herein are made under the lower burden of proof required to sustain a prima facie case, rather than that which is required to win a judgment on the ultimate issue of discrimination. "The prima facie case is not the final inquiry, but rather the first prong of analysis which defeats a motion for dismissal prior to trial . . . [A]t the prima facie stage the burden is minimal . . . To win a judgment, a plaintiff is required to overcome the additional obstacle of the defendant's rebuttal and convincingly demonstrate the existence of discrimination." Avery Dennison Corp., 104 F.3d at 861.
The FBI urges that Mulhall was not its employee for Title VII purposes as it was without the power to remove him from the Task Force, and was it responsible for his pay and benefits. The parties agree that the court must determine whether Mulhall was susceptible, in his assignment to the Task Force, to the kind of unlawful employment practices that Title VII was intended to remedy, being mindful of the broad remedial purposes of the Act. Ambruster v. Quinn, 711 F.2d 1332, 1341-42 (6th Cir. 1983). In Spirides v. Reinhardt, 613 F.2d 826 (6th Cir. 1979), the Court of Appeals stated that "[c]onsideration of all of the circumstances surrounding the work relationship is essential, and no one factor is determinative." Id. at 831. However, the court further noted that "the extent of the employer's right to control the `means and manner' of the worker's performance is the most important factor . . ." Id. The FBI had the responsibility for day-to-day supervision of Mulhall in the performance of his duties on the Task Force. He was required to be accountable for his time to his FBI supervisor. The ultimate hiring and firing responsibilities with respect to task force assignments remained with JCPD, in accordance with the Memorandum of Understanding. However, that same Memorandum indicated that continued assignment to the task force would be based upon performance. The only entity in a position to evaluate the daily performance of Task Force members would have been the FBI. In fact, Metcalfe himself stated that, although he did not have authority to discharge Mulhall from his assignment, he did, on a number of occasions, raise concerns about Mulhall's performance with Chief Jones. Clearly the FBI was in a position to influence the decision regarding Mulhall's continued assignment to the Task Force.
The FBI does not need to have paid Mulhall's wages, nor have had the ultimate decision making authority with respect to his assignment in order for Mulhall to be afforded protection under Title VII. Some non-standard employment relationships have been included under Title VII's protection. For example, in Christopher v. Stouder Memorial Hospital, 936 F.2d 870 (6th Cir. 1991), a nurse who was neither a direct employee of the hospital nor an independent contractor, was found nevertheless to be protected under Title VII against retaliation by the hospital by virtue of the fact that the hospital was an organization capable of and which did affect her ability to engage in her employment as a scrub nurse. Id. at 876. The court stated that
By discriminating against Plaintiff and refusing to grant her privileges to work in its facility, Defendant realistically prevents Plaintiff from performing the job for which she was hired by the physicians. This clearly interferes with Plaintiff's employment relationship with the hiring physicians and her opportunity to perform her work.Id. at 876. In the Christopher case, the hospital had no control over the nurse's work except to the extent that it provided uniform safety standards for all medical professionals who worked in the facility. The hospital had provided Christopher with equipment and facilities to perform her work and nothing more.
We find, in the case before us, greater indicia of an employment relationship inasmuch as the FBI directly supervised and managed the performance of Mulhall's Task Force duties, in addition to providing office space and equipment. As Mulhall's direct supervisor, the FBI had the power to affect his continued assignment to the Task Force. This court concludes, therefore, that Mulhall was susceptible to the types of wrongdoing targeted by Title VII due to the nature of the supervisory relationship between the FBI and Mulhall.
Finally, the FBI contends that Mulhall failed to initiate contact with an EEO officer within the prescribed time, and his claim is therefore time-barred.
29 C.F.R. § 1614.105(a)(1) provides that "[a]n aggrieved person must initiate contact with a counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action." Mulhall contacted EEO Counselor SA Joe Smith on February 26, 1996, eleven months after the effective date of his removal from the task force. The contact, therefore, was clearly untimely. He contends, however, that the FBI has waived its right to raise the untimeliness of the filing before this court because a specific agency finding was made to except this matter from the rule, and allow it to proceed. Where an agency does more than simply investigate a complaint of discrimination, but rather makes an express finding of timeliness or a finding that the defense of untimeliness should not bar consideration of the claims, the defense is then waived. See, Munoz v. Aldridge, 894 F.2d 1489 (5th Cir. 1990); Humm v. Crowell, 1998 WL 869981 unpubl. (6th Cir. 1998).
The June 6, 1996 letter from Stephen K. Yount, Assistant EEO Officer, to Mulhall's counsel stated
This office has contacted the EEO Counselor in the FBI's Louisville Division who handled your client's complaint at the informal stage. This counselor has advised the OEEOA that informational posters concerning an aggrieved individual's rights when they believe they have been discriminated against were posted in four separate locations within the Division's office space. However, this poster was not displayed in the office space occupied by the Task Force. Further, the OEEOA could not determine with any certainty that your client was aware of these posters or that he was ever exposed to EEO information which detailed his rights. Therefore, pursuant to Part 1614.105(a)(2), I have determined that your client's complaint of discrimination should be accepted for investigation.
The court concludes that the specific finding and acceptance of the complaint precludes the FBI from raising untimeliness at this stage in the proceedings.
In sum, the court concludes that genuine issues of material fact exist with respect to the issue of retaliation by the FBI. We have determined that Mulhall has come forward with sufficient evidence at this stage to establish a prima facie case, he is entitled to an employee's Title VII protection against retaliation, and his untimeliness in beginning the EEO process to redress his claim has been acknowledged and waived by the agency. For these reasons we conclude that the FBI is not entitled to dismissal or summary judgment at this point in the proceedings.
Motion having been made and for the reasons set forth herein above and the court being otherwise sufficiently advised, IT IS HEREBY ORDERED AND ADJUDGED that the motion of the defendants, the Federal Bureau of Investigation, et al., to dismiss or, alternatively, for summary judgment is DENIED.