Gilliard v. McWilliams

          MEMORANDUM OPINION RE DOCUMENT NOS. 46, 47

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

         Denying Plaintiff's Motion for Protective Order; Denying Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction

         I. INTRODUCTION

         Plaintiff Stephanie A. Gilliard seeks a protective order, a temporary restraining order, and a preliminary injunction authorizing her to decline to hand over to her employer, the Federal Deposit Insurance Corporation (“FDIC”), audio tapes containing conversations between her and her supervisors that she recorded surreptitiously while at work. Ms. Gilliard also asks this Court to bar the FDIC from taking disciplinary action against her for making the recordings and for refusing to allow her employer to access them. Finding that Ms. Gilliard has not demonstrated that the relief that she seeks is warranted, the Court denies her motions.

         II. BACKGROUND

         Ms. Gilliard, an African-American woman, is a Senior Administrative Specialist in the Administrative Management Section (“AMS”); Strategic Planning, Budget, and Reporting Branch (“SPBR”); Division of Risk Management Supervision (“RMS”) at the FDIC. See 2d Am. Comp. ¶¶ 4, 6-7, ECF No. 53. She has worked at the FDIC since June 2011. See Gilliard Affidavit at 1, Ex. A, Def.'s Combined Opp'n to Pl.'s Mot. for Protective Order & Mot. for Temp. Restraining Order & Prelim. Injunction (“Def.'s Opp'n”), ECF No. 52-1. According to Ms. Gilliard, her tenure has been marked by “years” of “harassment, discrimination, infliction of severe emotional distress, threats, disparate treatment and more from her supervisors.” Mot. for Protective Order at 3, ECF No. 46.

         Ms. Gilliard filed this action in October 2016. See Compl., ECF No. 1. In her complaint, she alleged that during a period from about March 2013 to December 2014, she suffered a host of alleged adverse employment actions-the denial of several promotions, the loss of employment responsibilities, unfavorable performance reviews, and exposure to a hostile work environment-due to racial discrimination and/or as retaliation for her protected EEO activity. See generally 2d Am. Compl. Many of Ms. Gilliard's claims focus on her interactions with Ms. Janice Butler (the former Chief of AMS and Ms. Gilliard's former first-line supervisor) and Mr. Phillip Mento (the former Associate Director of SPBR, RMS and Ms. Gilliard's former second-line supervisor). See 2d Am. Compl. ¶¶ 6-7, 10-30. One such allegation states that Ms. Butler and Mr. Mento learned that Ms. Gilliard had been recording conversations she had with them and that she planned to use the recordings to support her claims before the Equal Employment Office. See 2d Am. Compl. ¶¶ 45, 67-69. Purportedly to stop her from doing so, on or about October 29, 2014, Ms. Butler and Mr. Mento ordered Ms. Gilliard not to record conversations she had with any FDIC employees and warned her that she would face disciplinary action if they learned that she had defied their order. See 2d Am. Compl. ¶ 68. Ms. Gilliard asserted that the order was given as retaliation for her engagement in protected EEO activity. See 2d Am. Compl. ¶ 69. In addition, Ms. Gilliard contended that the command constituted part of a hostile work environment. See 2d Am. Compl. ¶ 45.

         Shortly after Ms. Gilliard filed her complaint, Defendant FDIC moved to have it dismissed. See generally Def.'s Mot. to Dismiss or, in the Alternative for Summ. J., ECF No. 18. While Defendant's motion was pending, Ms. Gilliard filed the motions for a protective order and for a temporary restraining order and preliminary injunction that are presently before the Court.^[2] See generally Mot. for Protective Order; Mot. for Temp. Restraining Order & Prelim. Injunction (“Mot. for PI”), ECF No. 47.

         Ms. Gilliard's motions concern events that occurred in 2017 and early 2018. In July 2017, Ms. Gilliard emailed Maureen Sweeney, the Deputy Director of RMS, seeking “medical leave due to stress” and asking for “intervention” in Ms. Gilliard's dealings with Mr. Mento. See Email from Gilliard to Sweeney (July 17, 2017), Ex. H, ECF No. 52-8. Ms. Gilliard asserted that Mr. Mento “continued to lie to [her] about [her] performance expectations, milestones and instructions, ” and contended that when around Mr. Mento, she “fear[ed] for her physical safety” and “fe[lt] like a victim of rape.” Email from Gilliard to Sweeney (July 17, 2017), Ex. H. The next month, Ms. Gilliard followed up with Ms. Sweeney, suggesting that she could provide audio tapes of meetings during which Mr. Mento had purportedly lied to and berated her. Email from Gilliard to Sweeney (Aug. 23, 2017), Ex. J, ECF No. 52-10.

         Days later, Mr. Joseph Masisak, the Assistant Director for Labor and Employee Relations at the FDIC, emailed Ms. Gilliard, noting that his staff was investigating her recent complaint and asking for evidence that would assist in the investigation. See Email from Masisak to Gilliard (Aug. 25, 2017), Ex. K, ECF No. 52-11. Asserting that she had “endured . . . more than 4 years of [Mr.] Mento ‘trumping' up charges against [her], ” Ms. Gillard declined to turn over any evidence in her possession, but noted that she would hand over her recordings for purposes of entering a settlement agreement. See Email from Gilliard to Masisak (Aug. 25, 2017), Ex. K, ECF No. 2-11. In response, Mr. Masisak repeated his request, explaining that the FDIC's Anti-Harassment Program requires employees to cooperate in fact-finding inquiries concerning allegations of harassment, that Ms. Gilliard's email to Ms. Sweeney suggested that she possessed audio recordings that revealed Mr. Mento's harassment, and that the tapes would assist the investigators in coming to the most appropriate outcome. See Email from Masisak to Gilliard (Aug. 30, 2017), Ex. L, ECF No. 52-12.

         Because, in Ms. Gilliard's view, “it was clear that the [FDIC] was only concerned with protecting itself, ” instead of immediately submitting her audio tapes to Mr. Masisak, she filed a workers' compensation claim with the Department of Labor's Officer of Workers' Compensation Programs. Reply to Def.'s Combined Opp'n to Pl.'s Mot. for Protective Order & Mot. for Temp. Restraining Order & Prelim. Injunction (“Pl.'s Reply”) at 4, ECF No. 55; see also Notice of Occupational Disease and Claim for Compensation (“Workers' Comp. Claim”) at 1 (Sept. 1, 2017), Ex. O, ECF No. 52-15. In her claim, Ms. Gilliard alleged, among other things, that in 2013, Mr. Mento had “disparaged” her and had “verbally abused and assaulted” her, causing her to suffer post-traumatic stress disorder. Workers' Comp. Claim at 1. Ms. Gilliard wrote that because she feared that no one would believe her assertions, she had recorded conversations with Mr. Mento. See Workers' Compl. Claim at 1.

         Before the Department of Labor resolved Ms. Gilliard's workers' compensation claim, Ms. Gilliard supplied Mr. Masisak and others with a few audio recordings that captured meetings between Ms. Gilliard and Mr. Mento. See Email from Gilliard to Masisak, et al. (Oct. 17, 2017), Ex. M, ECF No. 52-13; see also Email from Masisak to Gilliard (Oct. 18, 2017) (requesting any additional audio recordings that might support Ms. Gilliard's claims), Ex. N, ECF No. 52-14. According to emails accompanying the audio recordings, they were captured at meetings that took place in early 2017. See, e.g., Email from Gilliard to Masisak, et al. (Oct. 17, 2017), Ex. M at 1. Thereafter, Ms. Gilliard received notice denying her workers' compensation claim. See Notice of Decision, Ex. BB, ECF No. 52-28.

         Nearly two months after the denial of Ms. Gilliard's workers' compensation claim, Benjamin Vaughn, the Acting Associate Director of SPBR, sent Ms. Gilliard a memorandum ordering her to attend an investigatory interview about the allegations that she had made in her claim about Mr. Mento. See Order to Participate in Investigatory Interview, Ex. U, ECF No. 52-21. The memorandum warned that “[f]ailure to fully cooperate and respond truthfully could lead to a disciplinary action up to and including removal from federal service.” Order to Participate in Investigatory Interview, Ex. U. Though Ms. Gilliard regarded the request as curious because her claim had already been denied, she nonetheless attended the meeting. See Mot. for Protective Order at 6; Admin. Inquiry (Feb. 21, 2018) at 1, Ex. V, ECF No. 52-22.

         At the meeting, an employee from FDIC's Labor and Employees Relations section first asked Ms. Gilliard several questions about her allegations. See Admin. Inquiry (Feb. 21, 2018), at 1-3, Ex. V. Then, Mr. Vaughn ordered Ms. Gilliard to provide copies of all audio recordings featuring any FDIC employees that she had made after October 29, 2014, without obtaining permission to record. See Admin. Inquiry (Feb. 21, 2018) at 1-4, Ex. V; see also Order to Provide Audio Files, Ex. W, ECF No. 52-23. Mr. Vaughn offered Ms. Gilliard three options for providing the audio recordings: (1) she could email a complete, unedited copy of each audio file; (2) she could provide her phone to the FDIC's Division of Internet Technology (“DIT”), and DIT would make a copy of each audio file; or (3) she could provide her phone to a mutually acceptable transcription service, which would provide a transcript of each audio recording at the FDIC's expense. See Admin. Inquiry (Feb. 21, 2018) at 4, Ex. V; see also Order to Provide Audio Files, Ex. W. Mr. Vaughn ordered Ms. Gilliard to elect one of the three options by close of business on the day after the meeting. See Order to Provide Audio Files, Ex. W. And he directed her to provide the audio files no later than one day after she selected an option. See Order to Provide Audio Files, Ex. W. At the meeting, Ms. Gilliard asserted that she would not comply with the order. See Admin. Inquiry (Feb. 21, 2018) at 4, Ex. V.

         When Ms. Gilliard failed to comply with the deadlines that Mr. Vaughn had established, he sent her another order once again demanding that she produce the recordings. See generally Second Order to Produce Recordings, Ex. X, ECF No. 52-24. Mr. Vaughn's memorandum stated that Ms. Gilliard's refusals constituted “insubordination” and that her “misconduct will result in a proposal for disciplinary action.” Second Order to Produce Recordings, Ex. X. The memorandum addressed a host of concerns that Ms. Gilliard had voiced about the order. See Second Order to Produce Recordings, Ex. X. In addition, it provided three reasons for the FDIC's request: (1) to obtain information necessary to perform a complete investigation of Ms. Gilliard's allegations against Mr. Mento, (2) because the audio recordings showed that Ms. Gilliard had violated the October 2014 order directing her not to surreptitiously record her conversations with FDIC employees, and (3) because the recordings might contain confidential information about FDIC employees. Second Order to Produce Recordings at 2, Ex. X.

         Ms. Gilliard again declined to comply with Mr. Vaughn's order. Instead, she filed a Motion for a Protective Order and a Motion for Temporary Restraining Order and Preliminary Injunction, both of which are presently before this Court. See generally Mot. for Protective Order; Mot. for PI. Ms. Gilliard asks this Court to “prevent [the FDIC] from compelling [her] to give [it] copies of audio tape recordings of conversations between her and FDIC employees” and to “protect[]” her from disciplinary action related to her refusal to turn over the recordings. Mot. for Protective Order at 1; see also Mot. for PI at 1. Ms. Gilliard's motions are now ripe for decision.

         III. ANALYSIS

         A. Plaintiff's Motion for a Protective ...