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Sherry L. Musick v. Ken Salazar

March 14, 2012

SHERRY L. MUSICK, PLAINTIFF,
v.
KEN SALAZAR, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, DEFENDANT.*FN1



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on defendant's motion for reconsideration of the Court's October 24, 2007 Order denying defendant's motion for summary judgment. Upon consideration of the parties' papers, the relevant legal authorities, and the entire record in this case, the Court will grant defendant's motion for reconsideration, will vacate the Court's Order denying defendant's motion for summary judgment, and will grant defendant's motion for summary judgment on the only count of plaintiff's complaint.*fn2

I. BACKGROUND

Plaintiff Sherry L. Musick has brought this lawsuit against the Secretary of the United States Department of the Interior in his official capacity, alleging that the Department of the Interior retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Ms. Musick alleges that she was removed from federal service for engaging in activity protected by Title VII, that is, for "fil[ling] numerous complaints of discrimination against" the Department. Compl. at 1. The Department sees it differently: it contends that Ms. Musick was dismissed as an employee because she made statements of violence threatening various Department officials.

The history of this case begins more than 22 years ago. Ms. Musick was hired by the United States Bureau of Mines, a former division of the Department of the Interior, in 1990. See MSJ at 2; see also Def. SMF ¶ 1. She remained there for six years until her transfer to the United States Geological Survey ("USGS"), another division of the Department of the Interior, on January 26, 1996. Def. SMF ¶ 7.

Ms. Musick's time at Interior included many employment disputes. The Department alleges that on several occasions Ms. Musick displayed "inappropriate, disruptive behavior towards her supervisors." MSJ at 2. The Department asserts that in April of 1994 Ms. Musick received a letter of reprimand for "rude and disruptive behavior (yelling)[.]" Def. SMF ¶ 2. One month later, Ms. Musick was suspended for five days without pay for "rude and disruptive behavior" and "false, malicious, and highly irresponsible statements," id. ¶ 4; two months after that suspension, Ms. Musick was again suspended, this time for 10 days, "for rude and disruptive behavior and for false, malicious, and highly irresponsible statements against her supervisor." Id. ¶ 5.

Ms. Musick had her own share of complaints about the Interior Department. She filed numerous EEO complaints against various Department officials, alleging sex discrimination and sexual harassment. See Compl. ¶¶ 8-9. Ms. Musick claims that her EEO filings became so prolific that, at its high point, her filing rate averaged one complaint per month, see MSJ Opp. at 4, eventually culminating in a separate lawsuit before another judge of this Court, filed on January 21, 1997. See id. at 3; see also generally Musick v. Norton, Civil Action No. 97-0143 (D.D.C.).*fn3 Ms. Musick voluntarily dismissed that suit with prejudice on September 24, 2002. See Musick v. Norton, Civil Action No. 97-0143, Order at 1 (D.D.C. Sep. 24, 2002).

The events giving rise to this case arose while that prior lawsuit was pending. On May 1, 2001, Ms. Musick, while off-duty, encountered Barbara Mosgrave, a retired Interior Department employee, waiting in line at the Merrifield Post Office in Virginia. See MSJ at 3; Def. SMF ¶ 11; MSJ Opp. at 4-5. Their meeting was a chance encounter, and it is undisputed that Ms. Musick and Ms. Mosgrave had a conversation. See Def. SMF ¶ 11; MSJ Opp. at 4; see also Recons. Mot. at 4 n.2. The substance of the conversation is disputed: Ms. Mosgrave says that Ms. Musick threatened violence against various Department employees; Ms. Musick denies that she made any such statements. Compare Def. SMF ¶¶ 11-15, with MSJ Opp. at 4-5.

Specifically, Ms. Mosgrave says that Ms. Musick made threatening statements of violence against her first-line supervisor, Keith Harris, and at least two other Department of Interior employees. See Def. SMF ¶ 14; see also MSJ, Ex. 22 at 8-9, Affidavit of Barbara Mosgrave ("Mosgrave Aff.").*fn4 According to Ms. Mosgrave, Ms. Musick said that she wanted to see these employees "blown up and in their grave." Mosgrave Aff. at 8. As Ms. Mosgrave describes it, Ms. Musick was agitated when she made this statement, and then repeated this statement over ten times. See id. at 12. Ms. Mosgrave was alarmed by Ms. Musick's statements, and, at the end of the conversation, Ms. Mosgrave called her former supervisor at the Department, Michael Kaas, to inform him about what Ms. Musick had said. See Def. SMF ¶ 15; Mosgrave Aff. at 14.

Mr. Kaas then contacted Ms. Musick's first-line supervisor, Mr. Harris, and informed him about the alleged statements of violence. See Def. SMF ¶ 16. Mr. Harris reported the incident to his first-line supervisor - and Ms. Musick's second-line supervisor - John DeYoung. See id. ¶ 17; see also MSJ, Ex. 25 at 9, Affidavit of John DeYoung ("DeYoung Aff."). Interior Department officials then contacted Ms. Mosgrave to learn more about Ms. Musick's alleged statements, see, e.g., Def. SMF ¶¶ 21, 23, and Department officials agreed that Ms. Musick should be placed on administrative leave pending an investigation of the incident; Ms. Musick was placed on administrative leave on May 3, 2001. Def. SMF ¶ 22; see DeYoung Aff. at 9-10.

Mr. DeYoung conducted a preliminary investigation into Ms. Musick's alleged threatening statements. See Def. Stmt. ¶¶ 23-31. As part of his investigation, Mr. DeYoung met with Ms. Mosgrave and also obtained a statement from Mr. Kaas about the initial conversation he had with Ms. Mosgrave. Id. ¶¶ 23, 26. Mr. DeYoung also obtained statements from those who were the subject of Ms. Musick's alleged threats. Id. ¶¶ 24-25. The employees that Ms. Musick allegedly threatened said that, as a result of Ms. Musick's statements, they felt unsafe in the workplace. Id. ¶¶ 27-29.

Ms. Musick asserts in her papers - but without a supporting affidavit or declaration - that Mr. DeYoung did not interview or otherwise talk with her. MSJ Opp. at 8 (citing DeYoung Aff. at 55). Mr. DeYoung acknowledges that he did not formally interview Ms. Musick, but he asserts that he did have a brief discussion with her after placing her on administrative leave, during which there "certainly was an exchange of views where [he] told her what the situation was, she recounted to [him], and [they] had a brief discussion on the issue." DeYoung Aff. at 54; see id. at 55. Consequently, Ms. Musick's unsupported assertion notwithstanding, it is undisputed that Mr. DeYoung did in fact talk with Ms. Musick about the alleged incident. See DeYoung Aff. at 54-55. As Mr. DeYoung states, during this conversation Ms. Musick denied that she had made any statements of violence. See id.; see also MSJ, Ex. 24 at 9, Affidavit of Cathy Skelton ("Skelton Aff.") ("During the issuance of the administrative leave letter, [Ms. Musick] indicated that she would never have made comments of that nature[.]").

In June 2001, after consulting the Department's Workplace Violence Handbook and other policies governing the discipline of employees, Mr. DeYoung proposed that termination was the proper course of action: Ms. Musick's misconduct, Mr. DeYoung concluded, was sufficiently serious in his judgment to initiate termination proceedings. See Def. SMF ¶¶ 31-32. Mr. DeYoung issued Ms. Musick a letter of proposed termination on June 13, 2001. See id. ¶ 31.

Mr. DeYoung's proposal to terminate Ms. Musick was sent to Dr. David Russ, Ms. Musick's third-line supervisor, for a final decision on the matter. See Def. SMF ¶ 34. Dr. Russ then conducted his own investigation. See id. ¶¶ 34, 35, 37. In addition to reviewing Mr. DeYoung's findings, Dr. Russ conducted separate interviews of Ms. Mosgrave, Mr. DeYoung, and Mr. Kaas. See id. ¶¶ 34-35; see also MSJ, Ex. 26 at 10-15, Affidavit of Dr. David Russ ("Russ Aff."). And Dr. Russ considered statements given by the employees that Ms. Musick allegedly threatened. See Russ Aff. at 12-15.

Dr. Russ asserts that on September 4, 2001 he met with both Ms. Musick and her attorney at the time, Solaman Lippman, and that he gave Ms. Musick an opportunity to speak on her own behalf. See Russ Aff. at 14-15. Although Ms. Musick has claimed that no Department officials talked to her during the investigation of the May 1, 2001 incident, see MSJ Opp. at 8; MSJ, Ex. 23 at 40-41, Affidavit of Sherry Musick ("Musick Aff") - presumably including Dr. Russ - she has not been consistent on the matter. See MSJ, Ex. 30 at 110, Deposition of Sherry Musick, Mar. 10, 2004 ("3/10/04 Musick Dep.") ("I talked to Dave Russ on September 5th of 2001. . . . [He] asked me if I'd made violent threats against my supervisors at USGS and I said no."); MSJ, Ex. 31 at 13, Deposition of Sherry Musick, July 7, 2004 ("7/4/04 Musick Dep.") ("Q: Do you recall meeting with Mr. [sic] Ross? A: Yes. Q: When did you meet with Mr. [sic] Ross? A: I believe it was on September 5th of 2001."); 7/4/10 Musick Dep. at 36; see also supra at 5 (discussing Ms. Musick's brief talk with Mr. DeYoung). Moreover, in her most recent filing, Ms. Musick expressly acknowledges that she and Mr. Lippman in fact did attend a hearing conducted by Dr. Russ, and that she was interviewed at that hearing. See Recons. Opp. at 29 ("Sept. 2001, Mr. Lippman and Plaintiff attended a hearing conducted by Dave Russ and Cathy Skelton . . . . Plaintiff was interviewed in the hearing."); see also id. at 36 (Ms. Musick, providing a timeline of events, stating: "September 5, 2011, Plaintiff's meeting with Dave Russ at USGS."). Furthermore, it is undisputed that prior to her termination Ms. Musick and her attorney provided Dr. Russ with a written response in support of their position that she should not be terminated because she did not make any threatening statements, and that Dr. Russ reviewed and considered that written response. See Def. SMF ¶ 34; Russ Aff. at 10-11, 14-16; Musick Aff. at 41.

Ultimately, Dr. Russ determined that Ms. Mosgrave's report of the May 1, 2001 incident was credible. See Russ Aff. at 19. That determination was based, in part, on Ms. Mosgrave's "sincere, credible presentation," id. at 45, her "clear" and "consistent" description of the events in question, id. at 46, and Dr. Russ' conclusion that Ms. Mosgrave did not appear to have any reason for reporting Ms. Musick's statements other than her sincere concern about the nature of Ms. Musick's statements. Id. at 45-47. And having reviewed all of the evidence of his investigation, Dr. Russ determined that Ms. Musick did make the statements of violence, and he decided that removal was the appropriate sanction. See Def. SMF ¶¶ 37-38. He wrote a five-page, single-spaced letter to Ms. Musick summarizing his investigation and conclusion and terminating Ms. Musick's employment with the Department effective December 7, 2001. See MSJ, Ex. 19 at 4, Letter from D. Russ to S. Musick, Dec. 5, 2001.

In response, Ms. Musick filed a formal complaint of discrimination with the Interior Department's Office of Equal Employment Opportunity about her removal from the Department. Compl. ¶ 2. The EEO office conducted an investigation and then issued a final agency decision on August 14, 2002, id., concluding that Ms. Musick's removal was not the result of discrimination or reprisal. See Def. SMF ¶ 41. This lawsuit followed.

Ms. Musick filed her complaint with this Court on September 11, 2002, alleging one count of retaliation under Title VII. See Compl. ¶¶ 22-26. After settlement negotiations failed and discovery began, the Department moved for summary judgment. The Court denied the Department's motion by Order dated October 24, 2007, finding that there were genuine issues of material fact in dispute, and that the Department was not entitled to judgment as a matter of law. See Order at 1, Oct. 24, 2007 [Dkt. No. 44]. Soon thereafter, the Court referred the parties to mediation.

Mediation failed, and the Court directed the parties to prepare for trial, set to begin on May 24, 2010. The parties then submitted trial briefs, pretrial statements, and proposed jury instructions. But just before the beginning of trial, on May 14, 2010, Ms. Musick's counsel requested that the Court postpone the pretrial and trial dates because he had been selected for a jury in a murder trial in the Superior Court of the District of Columbia. See Consent Mot. for Enlargement of Time at 1, May 14, 2010 [Dkt. No. 57]. The Department did not ...


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