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Heller v. Elkins

United States District Court, District of Columbia

October 1, 2018

ARTHUR ELKINS et al., Defendants.


          TREVOR N. MCFADDEN, U.S.D.J.

         Agent Elizabeth Heller is a good investigator, by all accounts. Her investigation of the Environmental Protection Agency's Office of Homeland Security put her on the front line of a shameful turf war between that office and her employer, the Agency's Office of Inspector General. During the investigation, Agent Heller committed what was later deemed a minor policy infraction. Although she acted with the knowledge and implicit consent of her superior, she received an oral counseling that resulted in personal distress and may have caused professional harm.

         Agent Heller sued the heads of the EPA and its Office of Inspector General in their official capacities, claiming that the reprimand was retaliation against her in violation of Title VII for lodging a sex discrimination complaint against an Agency employee. But Agent Heller failed to establish at trial a causal link between her sex discrimination complaint and the oral counseling. She also failed to show that her employer acted with intent to retaliate instead of in a good-faith belief that she had violated Agency policy. Because a causal link and retaliatory animus are necessary elements of Agent Heller's Title VII claim, the Court will enter judgment in favor of the Defendants.

         I. FINDINGS OF FACT[1]

         Agent Heller filed this lawsuit in federal court in November 2016 after exhausting her administrative remedies. Compl. ¶ 2.[2] She sued Gina McCarthy in her official capacity as then-Administrator of the EPA. Compl. ¶ 3. Andrew Wheeler, the current Acting Administrator of the Agency, is automatically substituted in her place. Fed. R. Civ. Pro. 25(d). Agent Heller filed a Supplemental Complaint in June 2018, adding the Agency's Inspector General, Arthur Elkins, as a defendant in his official capacity. In July 2018, the Court held a three-day bench trial. Agent Heller testified on her own behalf and called five other witnesses. Minute Entries dated 7/17/18, 7/18/18, and 7/19/18. The Government called some of the same witnesses and two witnesses of its own. See 7/17/18 Tr. 69:14-17; Minute Entries dated 7/17/18, 7/18/18, and 7/19/18.

         A. Agent Heller Was the Casualty of an Inter-Office Turf War

          During the time at issue, there was considerable tension between the Agency's Office of Inspector General, or OIG, and its Office of Homeland Security, or OHS. 7/18/18 Tr. 136:19-24 (A. Williams). OHS was collaborating with the FBI on intelligence-related activities even though OIG staff believed they should take the lead, at least where the FBI's investigations involved EPA employees or contractors. Id. at 39:16-40:1. And although OIG refused to approve a Memorandum of Understanding between OHS and the FBI, OHS agents signed individual nondisclosure agreements with the FBI that prompted them to withhold information that OIG believed it had a right to obtain. Id. at 40:2-18. As Agency Deputy Chief of Staff (DCOS) John Reeder put it, “there was a turf war between these offices.” 7/17/18 Tr. 225:10-11 (Reeder).

         Agent Heller stepped into the thick of this conflict when OIG assigned her to investigate whether OHS had violated Agency policy and obstructed justice by failing to notify OIG of allegations against an Agency employee and instead working with the FBI to investigate the allegations without OIG involvement. Ex. J22 at EPA 0012 (DOD ROI); see also Pl.'s Proposed Findings of Fact ¶ 3. On October 24, 2013, Agent Heller and her colleague, Agent Ryan Smith, interviewed an OHS employee named John Martin, with Mr. Martin's counsel present. 7/17/18 Tr. 98:13-99:10 (Sullivan); Ex. J22 at EPA 0013. This interview was the culmination of at least two months of inter-office wrangling as to whether and how this interview should occur. 7/17/18 Tr. 98:17-99:21 (Sullivan). But Mr. Martin and his attorney left the interview in medias res, over the agents' objections, citing a need to handle child care issues. Id. at 100:17-22; Ex. J22 at EPA 0014.

         Immediately after Mr. Martin and his attorney left, Agent Heller went to Assistant Inspector General for Investigations (AIGI) Pat Sullivan and told him how frustratingly uncooperative Mr. Martin had been. 7/17/18 Tr. 101:21-25 (Sullivan). AIGI Sullivan was and is a high-level manager in OIG. He asked her if she had gotten Mr. Martin to sign a nondisclosure form prohibiting discussion of details about the interview with other witnesses at OHS. Id. at 101:25-102:3. Agent Heller realized she had not and told AIGI Sullivan that she would go get the signature right away. Id. at 102:4. AIGI Sullivan did not expressly direct Agent Heller to go and get Mr. Martin's signature, but he had the authority to stop her if he wanted to and would have stopped her if he thought that going to get the signature was against Agency policy. Id. at 102:5-19; 192:9-15. But AIGI Sullivan did not think there was anything wrong with Agent Heller's plan, and he considered it “vital” to get the form signed. Id. at 102:8-12; 192:20-193:4.

         Approaching Mr. Martin apart from his counsel was arguably a violation of OIG Policy 207, which states, “OIG policy permits an employee who is not in custody to have an attorney present at an interview if the employee so requests.” Ex. J11 at EPA 00436-37. But AIGI Sullivan believed that, as OIG has since amended its policy to clarify, having an attorney at a non-custodial interview is a courtesy and not a right. 7/17/18 Tr. 104:2-13 (Sullivan).[3] Agent Heller had heard him express this view and attribute it to OIG counsel. 7/19/18 Tr. 54:23-55:14 (Heller). AIGI Sullivan testified that, by allowing Agent Heller to go without raising any objection, he implicitly approved her effort to get Mr. Martin's signature. 7/17/18 Tr. at 192:16-20 (Sullivan). The Court agrees.

         After her conversation with AIGI Sullivan, Agent Heller tried unsuccessfully to contact Mr. Martin's attorney by phone and then went with Agent Gary Don Dorman to look for Mr. Martin at OHS. 7/19/18 Tr. 51:25-52:4; 95:10-96:6 (Heller). As they entered OHS's office suite, Agent Heller heard Mr. Martin talking about specific information from the interview with Nancy Dunham, from the Agency's Office of General Counsel, and with Senior Intelligence Advisor (SIA) Steve Williams, who worked for OHS. Id. at 52:4-8. Mr. Martin asked what the agents wanted, and Agent Heller explained that they needed a moment to address one follow-up item. Id. at 52:14-17. He said that he did not want to discuss anything without his attorney present. Id. at 52:18-20. Agent Heller tried to explain that he should not discuss details about the interview with anyone other than his attorney, but Ms. Dunham and SIA Williams shouted that Agent Heller was wrong. Id. at 53:1-15. Mr. Martin never signed the form. Id.

         SIA Williams appears to have harbored a hostile attitude toward OIG generally.[4] The evidence suggests that he behaved in an aggressive and unprofessional way in this instance. Agent Heller testified at a congressional hearing that SIA Williams yelled at her so loudly that it was difficult to understand what he was saying. Ex. J22 at EPA 0090. She also testified that SIA Williams “repeatedly jabbed his finger at me, merely inches from my chest, and as he got more aggressive, his complexion heated, his veins bulged, and he began to sweat profusely.” Id. According to Agent Heller, when she stepped back and tried to introduce herself, SIA Williams refused to shake her hand and stated, “I don't want to know you.” Id. at EPA 0091.

         B. The Office of Inspector General Supported Agent Heller

         When Agent Heller returned to OIG from her unsuccessful visit to OHS, she was emotional and physically shaken. 7/17/18 Tr. 75:17-20 (Kaminsky). She reported SIA Williams's interaction with her as an assault, and AIGI Sullivan responded by immediately sending four other agents back to OHS to investigate what had happened. 7/17/18 Tr. 108:1-10 (Sullivan). They had another confrontation with SIA Williams, but not as serious. Id. at 108:11-14. One of the agents wanted to arrest SIA Williams at once, but AIGI Sullivan decided that OIG should investigate the issue with help from the Federal Protective Service, or FPS, and then present it to the United States Attorney's Office for potential prosecution. Id. at 108:14-109:19.

         A month later, Agent Heller filed an Equal Employment Opportunity complaint, or EEO, against the EPA, alleging that SIA Williams had mistreated her during their encounter on October 24 because of her sex and noting that he had not treated the male agent with her in the same way. Ex. J22 at EPA 0796-98 (EEO complaint and attachment). Her colleagues at OIG were concerned about her, and she did not keep her complaint a secret from them. 7/17/18 Tr. 52:20-53:7 (Kaminsky); 7/19/18 Tr. 60:2014 (Heller). AIGI Sullivan testified that she discussed the complaint with him and that he supported her as she went through the EEO process. 7/17/18 Tr. 113:7-21, 114:1-3 (Sullivan). Agent Heller testified that she felt he supported her and that she tried to keep him and other OIG managers informed about the progress of her complaint. 7/19/18 Tr. 60:7-10, 15-17 (Heller).

         C. The Department of Defense Conducted an Independent Investigation

         Word quickly spread about the altercation. Four days after Agent Heller's encounter with SIA Williams and nearly a month before she filed her EEO complaint, Gina McCarthy, the EPA's Administrator, wrote a letter to the leadership of OIG and OHS about the incident. Ex. J46 at 12-13. Her letter noted the damaging consequences of “the growing discord, distrust, and conflict between members of your respective Offices, ” requested that OIG “temporarily halt its review” of OHS's conduct, and stated that she wanted FPS to handle the investigation. Id. Even though the Inspector General has significant independence from the Administrator, OIG voluntarily stopped investigating the incident and left it to FPS. 7/17/18 Tr. 109:20-25 (Sullivan). FPS investigated and then referred the assault charge to a federal prosecutor, but the prosecutor declined the case and sent it back to OIG to handle administratively. Ex. J22 at EPA 0068, EPA 0071-76.

         Because the incident involved one of EPA OIG's own employees and OIG wanted to avoid the appearance of partiality, OIG asked an umbrella organization called the Council of Inspectors General to find another agency's OIG to conduct the investigation. 7/19/18 Tr. 153:12-154:2. The Council approached the Department of Defense OIG, or DOD OIG, which entered a Memorandum of Understanding with the EPA and EPA OIG. Ex. J22 at EPA 0078. Under this agreement, DOD OIG agreed “to conduct a thorough and professional investigation of all facts and circumstances relating to the allegations of employee misconduct arising out of” the incident between Agent Heller and SIA Williams. Id. at EPA 0078-79.

         DOD OIG assigned Agents Andrew Dunphy and Jason Suffredini to the investigation, which lasted about 18 months and involved gathering documents and interviewing several Agency and OIG employees, including Agent Heller and AIGI Sullivan. 7/19/18 Tr. 19:13-20:19, 21:14-22:2 (Dunphy); Ex. J22 at EPA 0059-61. The agents consulted with DOD OIG Counsel Mark Boyll, who provided legal analysis and reviewed their draft Report of Investigation. 7/19/18 Tr. 19:16-21, 20:1-6, 20:14-19 (Dunphy).

         One of the people whom Agents Dunphy and Suffredini interviewed was DCOS Reeder. Agent Heller argues that DCOS Reeder retaliated against her for her EEO activity by influencing the investigators against her.[5] She emphasizes that he sought out a meeting with DOD OIG even though he was not a witness to the event, mentioned her EEO complaint to the investigators, told them that she had suggested a settlement, and sent them materials related to the EEO. Pl.'s Proposed Findings of Fact ¶¶ 53, 57-58, 86 (citing Ex. J22 at EPA 0775-76, EPA 0844-72).[6] But he did not mention her EEO activity until the interview was concluding and the agents asked him an open-ended question about whether there was anything else he knew. Ex. J22 at EPA 774. Even then, he only mentioned it after agents asked him a series of questions to follow up on his apparently off-hand comment that he had once met with Agent Heller. Ex. J22 at EPA 0774-76.

         If DCOS Reeder had wanted to harm Agent Heller and had thought that mentioning her EEO activity could help him do that, it seems unlikely that he would have waited so long to mention it. And it is unclear how DCOS Reeder could have thought that mentioning the EEO would harm Agent Heller since the EEO had nothing to do with the alleged policy violations that DOD was investigating. See 7/19/18 Tr. 13:1-15, 43:19-23 (Dunphy) (testifying that Agent Heller's EEO complaint did not affect the DOD's findings about her policy violation). DCOS Reeder testified emphatically that he has not retaliated against anyone for using the EEO process, which he took pride in having promoted and improved. 7/18/18 Tr. 34:9-36:9 (Reeder). The Court finds that DCOS Reeder did not act with retaliatory intent.[7]

         Even if DCOS Reeder had intended to retaliate against Agent Heller by influencing the DOD investigation against her, he was unsuccessful. Agent Dunphy testified that DCOS Reeder appeared to have “an agenda” during the interview but noted that this agenda was “related to his grievances against the OIG, ” not to Agent Heller's EEO activity. 7/19/18 Tr. at 31:2-5; see also Id. at 11:7-12:8 (describing the perceived grievances DCOS Reeder shared); id. at 36:20-37:20 (noting that tensions between OHS and OIG had led to tensions between the EPA Administrator's Office and OIG and that this problem predated Agent Heller's EEO activity). Agent Dunphy credibly testified that DCOS Reeder's agenda did not affect the conclusions of the DOD Report of Investigation and that he would have made the same recommendations even if he had never met with DCOS Reeder. Id. at 36:12-19. Although Agent Dunphy included EEO-related materials in the exhibits to his Report of Investigation and made a brief reference to the EEO complaint, they simply served to confirm that Agent Heller's description of her encounter with SIA Williams had stayed consistent over time. Id. at 13:10-15.

         A draft of DOD OIG's Report of Investigation found that Agent Heller had not engaged in any misconduct. Ex. J38. But this tentative finding changed after the DOD agents discussed the draft with DOD OIG Counsel Mark Boyll. 7/18/18 Tr. 199:1-11 (Dunphy).[8] The final Report of Investigation, which included a 56-page narrative and nearly 1, 000 pages of exhibits, made two findings against Agent Heller. Ex. J22. It found that Agent Heller acted negligently by telling Mr. Martin that he should not to discuss details of his interview with anyone other than his attorney and that she violated EPA OIG Policy 207 by communicating with Mr. Martin when his attorney was not present. Id. at EPA 0004. The Report also found that her colleague, Agent Smith, had committed a policy violation. Id. at EPA 0005. It did not sustain any of the allegations against SIA Williams. Id. at EPA 0004-05.

         The Court finds that the DOD OIG Report of Investigation was completed without improper influence from either EPA OIG or EPA headquarters.

         D. DAIGI Williams Conducted an ...

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