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Cross v. Small

September 29, 2006

MICHAEL D. CROSS, PLAINTIFF,
v.
LAWRENCE M. SMALL, SECRETARY, SMITHSONIAN INSTITUTION, DEFENDANT.



The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge

MEMORANDUM OPINION

Plaintiff Michael Cross was hired as a Museum Specialist with the National Air & Space Museum ("NASM"), a unit of the Smithsonian Institution, on April 23, 2001. Pl. Facts*fn1 ¶ 1. He was assigned to the Museum's Paul E. Garber Preservation, Restoration, and Storage Facility (the "Garber Facility") in Suitland, Maryland, where he and other employees restored aircraft, spacecraft, and other artifacts in preparation for the opening of the Museum's companion facility, the Udvar-Hazy Center. See Am. Compl. ¶ 10. Mr. Cross was terminated on April 12, 2002, about two weeks before his one-year probationary period would have ended. Pl. Facts ¶ 2.

Claiming that he was fired in retaliation for protected Equal Employment Opportunity ("EEO") activity, Mr. Cross sues Lawrence Small, Secretary of the Smithsonian Institution, for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (2005), and the First and Fifth Amendments. Before the Court is the Defendant's Motion for Summary Judgment as to Counts 1--3 of the Amended Complaint,*fn2 which allege a retaliatory hostile working environment, retaliatory discharge, and retaliatory negative references under Title VII. For the reasons explained below, the Court will grant the Defendant's motion in part and deny it in part.

I. FACTUAL BACKGROUND

Mr. Cross was hired by William Reese, Chief of the Museum's Preservation and Restoration Unit, Pl. Facts ¶ 3, who supervised him throughout his tenure at the Garber Facility. Am. Compl. ¶ 11. Mr. Cross began work in April 2001 and, by all accounts, his early performance was entirely satisfactory. See Pl. Facts ¶ 1; Def. Mem. at 2. In September 2001, Mr. Reese rated Mr. Cross's performance as "outstanding." Pl. Facts ¶ 5. Colonel Tom Alison, Mr. Reese's immediate supervisor and the Manager of the Garber Facility, concurred with this assessment. Pl. Exh.*fn3 1. In January 2002, Mr. Reese recommended that Mr. Cross's employment be continued past the end of the probationary period, Pl. Facts ¶ 5, and on February 19, 2002, Mr. Reese recommended that Mr. Cross receive a within-grade pay increase, indicating that his performance showed an "Acceptable Level of Competence," Am. Compl. ¶ 13; Pl. Exh. 3. Not quite two months later, on April 12, 2002, Col. Alison discharged Mr. Cross during his probation period, citing two reasons: poor attendance and misconduct. Pl. Exh. 6.

What changed, exactly, between Mr. Cross's favorable reviews as late as February 2002 and his termination in April 2002 is the subject of some disagreement. While the Government has submitted a statement of undisputed material facts pursuant to Local Civil Rule 7(h), the majority of that statement, it turns out, is disputed by Mr. Cross, and is therefore unusually unhelpful in crafting a cohesive narrative. Nonetheless, by reviewing those facts about which the parties do agree and the numerous documents now part of the record, the Court is able to provide an outline that places the controversy in context.

For several months before Mr. Cross's discharge in April 2002, there was unease among many of the employees in the Garber Facility - mostly, it appears, the result of personality conflicts and certain management practices. One of the employees' major issues concerned the treatment of Heather Hutton, who, like Mr. Cross, was a Museum Specialist at the Garber Facility. Beginning in June 2001, Ms. Hutton was apparently the recipient of unwanted advances from two nonsupervisory co-workers, and later had a romantic relationship with a third nonsupervisory co-worker, John Curry, that ultimately soured. See, e.g., Pl. Exh. 10B at 1-2. Fallout from the latter relationship led to some tension on the shop floor which, according to Ms. Hutton, escalated into accusations, fueled by Messrs. Curry and Reese, that Ms. Hutton's interactions with her male co-workers were inappropriate and disruptive to shop morale. See, e.g., id. at 2-3. These accusations, among other complaints, were the subject of a separate EEO charge eventually filed by Ms. Hutton. Pl. Exh. 10A.

Another prime employee concern was Mr. Reese's management style. Several workers complained that Mr. Reese gave preferential treatment to favored employees, shunned employees who had fallen out of his good graces, intimidated the workforce, and dealt poorly with female staff members. Not all employees shared these concerns, but the feelings of Robert McLean appear typical. He stated in his affidavit that:

Our goal in complaints against management was that we did not want Bill Reese as a supervisor, or in our chain of command. I believe that Mr. Reese and later Mr. Alison betrayed the trust placed in them by the Smithsonian Institution, and by their employees, by abusing their privileges and staff in a regular and obvious manner, to include intimidation, harassment, humiliation, isolation, conspiracy, deception and sexual harassment and sexual discrimination, extreme and overt forms of favoritism and cronyism, including the filling of several vacant position primarily from their circle of friends, and assigning friend/employees/cronies choice of travel, level of pay, and choice of assignments.

Pl. Exh. 11 (McLean Aff.) at 6. Both issues - the treatment of Ms. Hutton and Mr. Reese's management style - apparently came to a head in early 2002. Mr. Cross's role in addressing them is the focus of the present dispute.

On February 2, 2002, Mr. Cross initiated what he describes as his "EEO activity" by contacting Chandra Heilman, the Smithsonian's Ombudsman.*fn4 Pl. Exh. 32 (Cross Aff.) ¶ 23. In his first memorandum to Ms. Heilman, which bears the subject "ILLEGAL[] SHOP MANAGEMENT PRACTICES AT NASM-GARBER FACILITY" but no date, Mr. Cross complained that nine practices were routinely accepted as "normal" at the Garber Facility:

1. Personal and [p]rofessional [s]landering with intent to jeopardize income

2. Deliberate and willful disruptive shop management, hindering efficient production levels

3. Sexual and [e]thnic harassment and biasing, [w]ith deliberate and willful intent to restrict legal freedoms

4. Unfair and unethical hiring and shop management support practices

5. Inefficient, resource wasteful, and dangerous shop management by personnel isolation

6. Inability to use [c]hain-of-[c]ommand to resolve in-house issues

7. Verbal abuse and unprofessional emotional outbursts bordering on deliberate employee intimidation

8. Deliberate withholding of management assistance with bureaucratic/payroll problems

9. "Punishment" by isolation, public degrading, and denial of earned NASM benefits, for not participating with supervisor in non-work activities

Pl. Exh. 7A (undated memo) at 1. The memorandum listed nine "suggested action" steps, including the transfer of Mr. Reese to another facility. Id. at 2.

In an undated, two-page follow-up memo to Ms. Heilman, with the subject line "requested updates," Mr. Cross suggested that Mr. Reese was aware that somebody had contacted the Ombudsman about "the case" and was questioning staff to determine which "conspirators" were responsible for the "mutiny." Pl. Exh. 7B (undated memo) at 1. That memo also related that Mr. Curry had confronted Ms. Hutton in an "intimidating[]" manner in the parking lot after work. It elaborated: "Heather is VERY scared. She has contemplated quitting and leaving the area out of fear of both Bill Reese and John Curry's anger when the case is brought to light." Id. at 2.

In a third, also undated memo to Ms. Heilman, bearing the subject line "further details," Mr. Cross provided specific examples of each of the nine categories of inappropriate practices listed in his first memo. Specifically, with respect to the third category, "[s]exual and

[e]thnic harassment and biasing," Mr. Cross stated, among other things:

* I have he[a]rd [Mr. Reese] say, in reference to Heather Hutton . . . that "the c _ _ _ t [sic] used Bobbie to get the job."

* Mr. Reese (per his management style) had one of his top "A" team members [i.e., his favored employees] tell me and Mr. Kautner directly that we were "not to associate[] with Ms. Hutton outside of the shop, she was bad news." We were also told she had filed charges on 4 male members of our shop for Sexual Harassment.

* I feel, from Mr. Reese['s] daily mannerisms, he finds females "inferior."

* As for Mr. Curry, I have had him brag to me about his "conquest" of Ms. Hutton in a derogatory manner.

* It is my belief, supported by Mr. Reese's actions, that he has deliberately put Ms. Hutton[']s physical being "at Risk" by immediately putting her on the same crew as Mr. Curry.[] This forc[es] Ms. Hutton to work with a person he knowingly is sure [sic] to further harass and intimidate her.

Pl. Exh. 7C (undated memo) at 1. This letter also made specific allegations about drug use by Messrs. Reese and Curry. For example, it asserted that "Mr. Reese's behavior is very indicative of 'Cocaine' use. This is a habit he is known to have had, and [he] may still be under its influence. I state 'maybe' due to my knowledge of his Pot use." Id. at 1. Similarly, it alleged that "Mr. Reese's hiring of Mr. Curry is linked to the fact [that] they both smoke pot. Mr. Curry has been noticed by [co-worker] Bill Stevens[]on to be under the influence of pot at work." Id. at 2. The memo further asserted that Mr. Curry "possesses tendencies for violence." Id. at 1.

Ms. Heilman was the recipient of the bulk of Mr. Cross's complaints, but at some point in late February or early March 2002, Angela Roybal, a Senior EEO Program Manager in the Office of Equal Employment and Minority Affairs ("OEEMA"), was brought into the loop. See Pl. Exh. 7d (Feb. 28, 2002, email from Ms. Heilman to Bob McLean) ("Angela Roybal from OEEMA will call Heather tonight. Mike told me that Heather did not want to call from work."); Def. Exh. 24 (Roybal Aff.) ¶ 6 (noting her attendance at a March 11, 2002, meeting at the Garber facility). In early March, John Benton, the NASM Ombudsman, also became involved in addressing the Garber employees' complaints. Roybal Aff. ¶ 6 (noting his attendance at the March 11, 2002, meeting); Pl. Exh. 7G (Mar. 21, 2002, email from Mr. Benton to Ms. Heilman).

On March 5, allegedly prompted by "personal concern for [his] safety and that of [his] co-workers," Pl. Exh. 32 (Cross Aff.) ¶ 27, Mr. Cross sent the following email to Ms. Heilman:

Chandra,

I am sorry to have been picked to send you this news but it is a majority consciences [sic] Mr. Small be notified immediately concerning our predicament. The ladies in the shop are AFRAID NOW, while several of us men feel we have to watch over our shoulder constantly. We have placed before you over 18, professional, employees with excellent performance records documented as being in jeopardy with no action taken in almost a month. With each day our fears and risks increase while Bill Reese and his people clean up and cover their tracks. We have pleaded with you to get someone on this asap without any response. Today Ms. McCombs had to be taken to the doctors for sever[e] chest pains (that turned out the be a case of "anxiety attack[").] Ms. Hutton was jumped by Tom Alison today, who demanded to know who the other parties were. This along with the escalating shop anger, foul looks and insinuations abounding around the shop, we feel it is better to be fired or quit than to risk injury or property damage. Two people (Bob McClean and Ed Mautner) have each asked me if I was aware Bill Reese carries a gun and felt compelled to inform me that they thought he may be capable of using it. I don't know what possessed them to tell me this but I certainly do not take it as a sign of confidence on their part for Bill[']s judgment. We are afraid for Heather to the point we are rotating shifts to stay with her later after hours for protection. Bob McClean is on tonight, [m]y turn tomorrow[,] and Dave Wilson is on both nights. If this type of situation is so common in the Smithsonian that no one is concerned enough to investigate quickly then maybe we should have gone to outside sources in the first place. I am sure you have tried your best but right now we, your prize employees at Garber[,] feel people[']s safety overrides protocol.

Sincerely,

a. A. McCombs

b. R. McLean

c. W. Lee

d. E. Mautner

e. D. Wilson

f. H. Hutton

g. B. ...


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