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Karl Hampton v. Tom Vilsack

January 13, 2011

KARL HAMPTON, PLAINTIFF,
v.
TOM VILSACK, SECRETARY,*FN1 UNITED STATES DEPARTMENT OF AGRICULTURE, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Karl Hampton was terminated from his position as a Foreign Service Officer for the United States Department of Agriculture ("USDA") and has now sued his former employer, claiming discrimination on the basis of his race, retaliation for engaging in protected activity, and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Before the Court is defendant's motion for summary judgment. For the reasons set forth below, defendant's motion will be granted in part and denied in part.

BACKGROUND

I. FACTUAL HISTORY

A. Background

Plaintiff is an African-American male who was hired by the USDA in its foreign agriculture service ("FAS") in 1987. (Plaintiff's Deposition ["Pl.'s Dep."] at 13:6-13.) In 1991, plaintiff was a member of a class action alleging racial discrimination in FAS promotions, rotations, and training. (Id. at 14:12-15:10.) This case ultimately settled in the 1990s. (Id.) While serving abroad as the Agricultural Attache to Brazil in 1996, Plaintiff again participated in protected employment activity by filing an EEO complaint against his then supervisor regarding "discriminating disparate statements in [his] performance assessment." (Id. at 16:14-20:13.) This case settled prior to 2000. (Id.)

Upon returning from Brazil in 1996, plaintiff's first-line supervisor was Dale Miller, a Caucasian USDA employee. (Id. at 20:14-17.) Plaintiff alleges his relationship with Miller at this time was marked by occasional "animosity," particularly when plaintiff was not selected for a requested promotion. (Id. at 22:3-25:6.)

From March through June 2002, plaintiff was detailed to the Executive Office of the President. (Id. at 25:7-10.) In reference to plaintiff's detail and his participation in an executive development program, plaintiff alleges that Miller told Patricia Perkins, one of plaintiff's African-American co-workers, that plaintiff was "thinking that he's a nigger from California instead of a nigger from Mississippi." (EEOC Testimony of Patricia Perkins, Sept. 18, 2007 ["Perkins Testimony"] at 644:19-20; 673:20-22.) Miller denies making this comment. (Dale Miller Deposition ["Miller Dep."] at 125:8-15.)

B. 2002 Printing of Sexually Explicit Emails

On April 26, 2002, a male employee named Tim Powers informed Miller that he had found sexually explicit materials on one of the USDA printers. (Miller Dep. at 77:8-14; 80:21-81:5.) Miller retrieved the materials and asked the Human Resources Division what he should do about them. (Id. at 79:3-6.) Miller was informed that he should take the printed materials to the Computer Security Office, which he did. (Id. at 79:17-80:7.) Human Resources and the Computer Security Office then indicated they would handle the matter from that point forward and would conduct an investigation to determine who had printed the materials. (Id. at 80:18- 81:22; Lolla Smith Deposition ["Smith Dep."] at 28-33.) The investigation (which Miller did not take part in) traced the electronic printer logs, and determined that the sexually explicit materials were printed from plaintiff's computer. (Smith Dep. at 31:20-32:1.)

On July 12, 2002, Miller sent a letter to plaintiff proposing a two-week suspension for plaintiff based on "Misuse of a U.S. Government color printer to print sexually explicit pictures." (Def. Mot. Ex. 5 at 1.)*fn2 Miller was not the deciding official for the matter and had no role in the ultimate decision on the suspension. (Miller Dep. at 95:15-96:9.) The deciding official was the then administrator, Ellen Terpstra, and Miller had no communications with Terpstra about his proposal or her decision. (Id.) In addition, the recommendation for the 14-day suspension originally came from Ms. Lolla Smith, an employee relations specialist, and was "based on the normal practices" within the office at the time. (Smith Dep. at 79:4-6.)

Plaintiff responded in writing to the proposed suspension. In his letter, plaintiff did not deny having printed sexually explicit materials to the USDA color printer-and indeed, admitted that he "did access these [sexually explicit] sites and . . . did misjudge the situation and printed off some pictures." (Def. Mot. Ex. 6 at 48.) Plaintiff argued, however, that he did not print sexually explicit materials during the exact periods of time specified by USDA. (Id. at 47-49 (e.g., "I did not print off over 218 pages of such material during the hours of midnight and 5 am on April 2, 2002.").) Plaintiff further challenged the length of his proposed suspension as excessive. (Id. at 50, 55.)

Administrator Terpstra noted that while FAS had not had a prior case of computer misuse related to sexually explicit materials, the proposed 14-day suspension was consistent with prior incidents at the USDA. (Def. Mot. Ex. 2 at 5.) Terpstra ultimately sustained two of the three allegations against plaintiff and reduced his suspension to one week. (Id.)

C. Alleged Conflict of Interest in Connection with Personal Business Venture

On June 30, 2003, Ms. Lolla Davies of the Employee and Labor Relations branch of FAS's human resources department opened an investigation into allegations that plaintiff had created a conflict of interest and had attempted to abuse his position for personal gain. (Def. Mot. Ex. 8 at 1.) Plaintiff had sought to open a sweet potato processing plant called Syrisia Foods by incorporating the company in 1998 and having a feasibility study done by Sparks Company. (Pl.'s Dep. at 134:8-13.) Plaintiff paid $66,000 of his own money for the feasibility study (id. at 136:3-13), and the study contained plaintiff's representation that he was a USDA employee. (Def. Mot Ex. 10.) Before having this feasibility study done, however, plaintiff successfully applied for a grant from the USDA. (Pl.'s Dep. at 137:22-138:12.) Plaintiff did not disclose his affiliation with the USDA as a part of this grant application, although apparently he was not required to disclose this information as part of the application process. (Id. at 143:16-144:14.) Plaintiff also failed to disclose his financial interest in Syrisia Foods to the USDA as required by USDA ethics regulations. (Def. Mot Ex. 11 [Proposed Removal Letter, January 27, 2005] at 10.)

In October 2003, plaintiff discussed his financial interest in Syrisia Foods with a FAS Ethics Officer, who recommended that plaintiff adjust his disclosure forms to include Syrisia Foods. (Plaintiff's Declaration ["Pl.'s Decl."] ¶ 15.)

D. Investigation into Plaintiff's Hotel Receipts

In early 2004 plaintiff submitted a hotel receipt for reimbursement. A new employee, Christine Lipscomb, processed plaintiff's receipts for reimbursement.*fn3 (Miller Dep. at 176:21-179:21.) Following procedure, Lipscomb asked plaintiff for the original hotel receipt, having originally been provided only with a copy. (Id.) When plaintiff submitted what he purported to be the original receipt, Lipscomb noted that it seemed to contain handwritten changes, so she contacted the hotel for the original receipts. (Id.) Based on her review, she concluded that plaintiff's receipts had been altered. (Id.) Lipscomb contacted Miller, who upon looking at the documents took them to his supervisor, Mr. Roy Henwood. (Id.) Mr. Henwood in turn believed the matter should be investigated by Compliance Review Staff ("CRS"). (Id.) Mr. Miller concurred, and took the receipts to FAS Security Officer Richard Maxwell. (Id.) Maxwell, an Army criminal investigator for 25 years before joining the USDA, conducted an investigation into whether plaintiff had submitted additional altered travel receipts for reimbursement.*fn4

Maxwell's investigation concluded that numerous hotel bills submitted by plaintiff had been altered. (Def. Mot. Ex. 11.) These alterations indicated that plaintiff had spent additional nights at hotels, thereby increasing the reimbursement amount supposedly owed to plaintiff. (Id.) Some receipts had been altered by pen, and printed bills had been changed. (Id. at 2-3.) Others were typed in a format that did not resemble genuine bills provided by the hotels, such as, different fonts, missing account numbers, misaligned columns, or missing signature lines. (Id. at 2-7.) Some receipts contained changed dates that did not match a hotel's file copy of the bill. (Id. at 3.) Some receipts indicated that plaintiff's Visa credit card was used to pay for charges. The credit card statements, however, contained no corresponding charges (or contained charges for smaller amounts.) (Id. at 3-6.) Plaintiff became aware of this investigation on January 29, 2004, when he was contacted by Maxwell, who then met with plaintiff the following day to discuss his government travel, conflicts of interest, and possible ethics violations. (Pl.'s Decl. ¶ 16.)

At this time in mid-2004, plaintiff was under investigation by CRS for both possible conflicts of interest related to the Syrisia sweet potato plant, as well as for allegations that he had altered hotel receipts that he had submitted for reimbursement. In addition, plaintiff was due for "periodic reinvestigation," which is a background investigation that must be conducted every five years for all individuals who hold top secret security clearances, as plaintiff did at that time. (Martin Brumback Deposition ["Brumback Dep."] at 15:7-16:12.) The fact that plaintiff's periodic reinvestigation occurred at this time was not connected to the ongoing CRS investigations. (Id. at 41:11-42:1.) Martin Brumback, the Chief of the Personnel and Document Security Division and the official in charge of USDA security clearances, received a call from CRS notifying him that CRS was investigating allegations of misconduct that had been made against plaintiff. (Id. at 9:13-10:3; 16:20-17:17.) Such notification is required when CRS investigates allegations that would adversely reflect on a person's eligibility to hold a national security clearance. (Id. at 17:18-18:3.) Brumback reviewed a packet of information that contained both the allegations against plaintiff, as well as his response. (Id. at 20:5-18.) Pursuant to his normal practice, Brumback suspended plaintiff's security clearance on June 30, 2004, and held in abeyance his office's decision on plaintiff's eligibility for a renewed clearance pending resolution of the misconduct charges. (Pl. Opp. Ex. 12; Brumback Dep. at 28:9-29:1.)

On June 20, 2004-the same day his security clearance was suspended-plaintiff filed an EEO complaint alleging that the investigation into his misconduct was discriminatory. (Pl.'s Decl. ¶ 19.)

In October 2004, plaintiff was denied a promotion from FS-03 to FS-02. (Compl. ¶ 16; Pl.'s Decl. ¶ 20.)

In November 2004, plaintiff was denied a foreign assignment by FAS. (Compl. ¶ 18; Pl.'s Decl. ¶ 22.) Later that month, plaintiff alleges that FAS Deputy Administrator Lyle Sebranek told Sheila Bruce, a Personnel Management Specialist in Human Resources, that plaintiff was not being sent overseas because of his EEO complaint.*fn5 (Affidavit of Sheila Bruce, Pl.'s Opp. Ex. 15 at 2-3.) Sebranek denies making this statement. (Lyle Sebranek Deposition ["Sebranek Dep."] at 55:16-60:12.)

E. Plaintiff's Proposed Termination

The results of the investigation into plaintiff's hotel reimbursement requests were ultimately forwarded to Lacy Muir, a USDA employee relations specialist, who had had no prior interactions with plaintiff. (Lacy Muir Deposition ["Muir Dep."] at 9:11-13; 12:17-19.) After examining the results of the investigation, Muir believed that plaintiff should be terminated. (Id. at 41:15-42:13.) Muir then discussed the matter with Miller, and she drafted a proposal of removal ultimately signed by Miller and delivered to plaintiff on January 27, 2005. (Id. at 43:2-10; 44:12-46:2; Def. Mot. Ex. 11.) Plaintiff was subsequently placed on paid administrative leave. (Id.)

As plaintiff's second-line supervisor, the deciding official for plaintiff's removal was Mr. Roy Henwood, a political appointee and the then Director of External Affairs and Confidential Assistant to the ...


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