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Barry v. United States Capitol Guide Board

July 21, 2009

KEVIN BARRY, PLAINTIFF,
v.
UNITED STATES CAPITOL GUIDE BOARD, DEFENDANT.



MEMORANDUM OPINION

Plaintiff Kevin Barry brings this action against his former employer, the United States Capitol Guide Board ("Board"),*fn1 alleging, pursuant to the Congressional Accountability Act of 1995, 2 U.S.C. § 1302 (2000),*fn2 that the Board unlawfully terminated his employment with the United States Capitol Guide Service ("Service") in 2003 in retaliation for the statutorily protected activity he initiated against his employer in 1996. Amended Civil Complaint for Equitable and Monetary Relief and Demand for Jury ("Am. Compl.") ¶¶ 74-81. This matter is currently before the Court on the Board's motion for summary judgment,*fn3 which the plaintiff opposes.*fn4 Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment and Request for Oral Argument ("Pl.'s Opp'n").

I. BACKGROUND

The facts in the light most favorable to the plaintiff are as follows.*fn5

The plaintiff commenced his employment with the Service on June 1, 1994. Pl.'s Opp'n at 6. After approximately two years with the Service, in March 1996, the plaintiff applied for a promotion to the position of Chief Guide, but he was not selected for the position. Pl.'s Opp'n at 6. As a result of his non-selection, the plaintiff filed an administrative complaint with the Office of Compliance pursuant to § 402(a) of the Congressional Accountability Act of 1995, alleging that his non-selection was the result of the Service's unlawful discrimination against him because he is hearing-impaired. Pl.'s Opp'n at 6. The administrative complaint was eventually dismissed after the plaintiff abandoned prosecution, id. at 6-7, but not before the Board conducted interviews with the plaintiff's co-workers regarding his job performance, which the plaintiff himself initiated, Def.'s Stmt. ¶¶ 18-19.

In the interviews, the Board learned for the first time of informal allegations by the plaintiff's co-workers asserting that the plaintiff was engaging in inappropriate behavior. Id. ¶ 19. On June 19, 1996, on the basis of the information obtained from those interviews, the Board provided the plaintiff with a disciplinary memorandum "'setting forth allegations of sexual harassment, gender discrimination and retaliation.'" Pl.'s Opp'n at 7; see Def.'s Stmt., Declaration of Toby R. Hyman ("Hyman Decl."), Ex. K (June 19, 1996 Memorandum Regarding "Serious Misconduct"). The memorandum indicated that the interviews had been conducted in connection with the plaintiff's March 1996 complaint against his employer. Def.'s Stmt., Hyman Decl., Ex. K (June 19, 1996 Memorandum Regarding "Serious Misconduct") at 1.

Four months later, in October 1996, the plaintiff requested mediation with his employer, alleging that the June 1996 disciplinary memorandum was prepared in retaliation for his March 1996 complaint. Pl.'s Opp'n at 7. While there is no indication concerning the success of any mediation that occurred, see Def.'s Stmt. ¶¶ 22-23, the plaintiff filed a formal complaint of retaliation against his employer with the Office of Compliance in March 1997, Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 1.7.

On July 23, 1997, the plaintiff and the Board executed a settlement agreement that, for unexplained reasons, referred to both of the plaintiff's previous complaints, Pl.'s Opp'n at 7; see also Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 2.5, although the plaintiff had previously abandoned the prosecution of his March 1996 complaint, Pl.'s Opp'n at 6-7. The 1997 settlement agreement stated that the Board could retain the 1996 disciplinary memorandum addressing "'allegations of sexual harassment, gender discrimination or retaliation,'" but could not maintain it in the plaintiff's personnel file "'until and unless [the defendant] receive[d] any additional accusation of sexual harassment, gender discrimination or retaliation against [the plaintiff],'" which were "'verified by a good faith investigation.'" Pl.'s Opp'n at 7-8; see also Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 2.5. In the event an "additional accusation of sexual harassment, gender discrimination or retaliation against [the plaintiff]" was made, the 1997 settlement agreement provided that the Board could then file the 1996 disciplinary memorandum in the plaintiff's personnel file, along with any opposition statement the plaintiff submitted in response to those allegations. Pl.'s Opp'n at 7-8; see also Pl.'s Stmt., Ex. 1 (1997 Settlement Agreement) § 2.5. The plaintiff never submitted any opposition statement to the 1996 disciplinary memorandum. Def.'s Stmt. ¶ 26.

By early July 8, 2003, roughly six years after the plaintiff filed his second complaint against the Service and the parties entered into the 1997 settlement agreement, the plaintiff received a memorandum written by Thomas L. Stevens, Director of Visitor Services, recommending the plaintiff's termination from his position as Assistant Director in Charge of Administration. Pl.'s Stmt., Ex. 5 (Stevens' Recommendation for Termination of Employment ("Stevens' Recommendation")) at 1. The memorandum indicated that "[a]fter a thorough investigation and careful consideration" of several incidents related to the plaintiff's contact with "a contract interpreter seeking a permanent position with [a division of] . . . the Guide Service," Stevens would "recommend to the Capitol Guide Board that the [plaintiff's] employment . . . be terminated." Pl.'s Stmt., Ex. 5 (Stevens' Recommendation) at 1. According to Stevens' memorandum, those incidents included "inappropriate conduct" consisting of: (1) "question[ing] [the contractor] about her ethnic background;" (2) "ma[king] stereotypic and insulting comments about minorities;" (3) "question[ing] [the contractor] about her sexual orientation;" (4) "comment[ing] about the sexual orientation of other [division] employees;" (5) "undercut[ing] the best interests of the Guide Service" by recommending to the contractor that she seek employment elsewhere; and (6) "disclos[ing] confidential information about other employees['] [work performance] to [the contractor]." Pl.'s Stmt., Ex. 4 (Stevens' Memorandum to Kevin Barry Regarding Recommendation for Termination of Employment ("Stevens' Memorandum")). Specifically, Stevens reported that the plaintiff "asked [the contractor] whether she is gay or straight and . . . commented that one might have to be gay to work in [his division of the Service];" made racially insensitive remarks about Hispanics after learning the contractor was Hispanic; "tr[ied] to convince [the contractor] not to take the job [with the Service], if offered;" "made various negative comments . . . concerning the performance of guides [who reported to him];" and failed to report alleged comments up the chain that might have had a bearing on a personnel hiring decision as required by his employer. Pl.'s Stmt., Ex. 5 (Stevens' Recommendation) at 1-2.

Stevens' memorandum further indicated that he had arrived as his recommendation after interviewing both the contractor and the plaintiff. Id. at 1. It was Stevens' view that the contractor seemed "very credible" in conveying her allegations against the plaintiff and provided "internally consistent" statements to him. Id. On the other hand, Stevens assessed that the plaintiff was not credible based upon his odd reactions and "internally inconsistent" statements about the contractor's allegations. Id. Stevens concluded that the plaintiff had engaged in behavior that violated office policy and was inconsistent with the training that the plaintiff had received. Pl.'s Stmt., Ex. 4 (Stevens' Memorandum). Stevens instructed the plaintiff to take "leave, with pay[] pending the decision of the Board" as to whether Stevens' recommendation to terminate the plaintiff would be approved. Id.

On July 16, 2003, the Board's three members, William H. Pickle, Wilson Livingood, and Alan M. Hantman, unanimously upheld Stevens' recommendation "to terminate [the plaintiff's] employment for displaying a lack of good judgment and for engaging in inappropriate conduct." Pl.'s Stmt., Ex. 3 (Termination of Employment Letter). One of the three members of the Board members, Wilson Livingood, indicated that the Board relied upon Stevens' investigation and recommendation as the only analysis of the contractor's allegations, believing that Stevens had made a "good faith investigation" based upon his "every confidence in Mr. Stevens's abilities and professionalism." Pl.'s Stmt., Ex. 2 (February 24, 2006 Deposition of Wilson S. Livingood ("Livingood Depo.")) at 146-47; see also Def.'s Stmt., Declaration of Alan Hantman ("Hantman Decl.") ¶¶ 3-5; id. at Declaration of William H. Pickle ("Pickle Decl.") ¶¶ 4-6. Livingood, who was a signatory to the 1996 disciplinary memorandum the Board issued to the plaintiff, also indicated that during the Board members' discussion as whether to approve Stevens' termination recommendation he informed the other two Board members about the fact that the plaintiff had been reported to have engaged in inappropriate behavior in 1996, i.e., the underlying facts of the 1996 disciplinary memorandum. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 135; Pl.'s Opp'n at 11. Livingood noted, however, that the 1996 allegations against the plaintiff were "a small factor" in his decision to approve Stevens' recommendation to terminate the plaintiff's employment. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 135; see also Pl.'s Opp'n at 11.

Despite disclosing this information to the two other Board members, Livingood insists that he did not provide the Board members with a copy of the memorandum or convey that the plaintiff filed any complaint of discrimination against his employer in connection to the issuance of the memorandum. Pl.'s Stmt., Ex. 2 (Livingood Depo.) at 137, 206-08. Since rendering their termination decision, the Board members have provided sworn statements indicating that they would have decided to terminate the plaintiff's employment based solely on the content of Stevens' memorandum regardless of the 1996 allegations. Defs.' Stmt. ¶ 134; id. at Declaration of Wilson Livingood ("Livingood Decl.") ¶¶ 8-9; id. at Hantman Decl. ¶¶ 6-7; id. at Pickle Decl. ¶¶ 7-8.

The plaintiff commenced this action challenging the Board's decision to terminate his employment on the ground that it amounted to unlawful retaliation in response to the challenges he initiated in 1996 and pursued until the 1997 settlement agreement was reached.

II. STANDARD OF REVIEW

To grant a motion for summary judgment under Rule 56(c), this Court must find that "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. Bayer v. U.S. Dep't of Treasury, 956 F.2d 330, 333 (D.C. Cir. 1992). However, the non-moving party cannot rely on "mere allegations or denials . . . , but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (citation and internal quotations omitted). In addition, the non-moving party cannot rely upon inadmissible evidence to survive summary judgment; rather, the "non-moving party must 'produce evidence . . . capable of being converted into admissible evidence.'" Greer v. Paulson, 505 F.3d 1306, 1315 (D.C. Cir. 2007) (citation and internal quotations omitted). Under Rule 56(c), if a party fails to "establish the existence of an element essential to that party's case, ...


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