United States District Court, District of Columbia
STEPHANIE A. GILLIARD, Plaintiff,
JELENA MCWILLIAMS, Chairman, Federal Deposit Insurance Corporation, et al.,  Defendants.
MEMORANDUM OPINION RE DOCUMENT NOS. 46, 47
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE
Plaintiff's Motion for Protective Order; Denying
Plaintiff's Motion for Temporary Restraining Order and
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.
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.
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.
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. See generally Mot. for
Protective Order; Mot. for Temp. Restraining Order &
Prelim. Injunction (“Mot. for PI”), ECF No. 47.
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.
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.
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.
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.
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.
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.
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.
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
Plaintiff's Motion for a Protective ...