FINDINGS OF FACT AND CONCLUSIONS OF LAW
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 ...