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McCullough v. Whitaker

United States District Court, District of Columbia

January 8, 2019

MATTHEW G. WHITAKER, Acting Attorney General of the United States, Defendant.



         To borrow from Tolstoy, all happy workplaces are alike, but each unhappy workplace is unhappy in its own way. This case is about one very unhappy workplace. Plaintiff Oscar McCullough claims that from 2009 to 2011, he had an extramarital affair with a coworker at the Department of Justice Office of the Inspector General ("OIG"). When the affair supposedly ended, turmoil began. That coworker, Brandie Miller, and several of McCullough's other colleagues complained to their supervisors that McCullough spread false and malicious rumors about them. McCullough denied these allegations and asserted that it was the other way around: Miller and the others were harassing him. The Department of Justice initiated a formal investigation, which unfolded over four months. The investigation determined that McCullough's complaints against Miller and the others were unfounded but that the complaints against McCullough had merit. The investigation concluded in particular that McCullough had made inappropriate comments of a sexual nature, that he had deliberately hindered coworkers from completing their assignments, and that he had made inappropriate and potentially discriminatory comments about a pregnant job applicant. OIG suspended McCullough for seven days without pay. According to OIG, the suspension was based on McCullough's misconduct. McCullough sees it differently. He believes that he was suspended based on his sex and also in retaliation for complaining about sex discrimination. McCullough, accordingly, filed this action under Title VII of the Civil Rights Act of 1964, asserting claims of sex discrimination and retaliation against the Department. Dkt. 3. The matter is now before the Court on the Department's motion for summary judgment, Dkt. 33. For the reasons that follow, the Court will GRANT the Department's motion.

         I. BACKGROUND

         The following facts are undisputed except where noted.

         A. Factual Background

         1. Allegations of Misconduct

         From March 2008 to February 2016, Oscar McCullough served as a contracting officer in the Management and Planning ("M&P") Division of the Office of the Inspector General at the Department of Justice. Dkt. 33-2 at 1 (Def.'s SUMF ¶ 1); Dkt. 33-22 at 4 (McCullough Aff. ¶¶ 8-12). His direct supervisor was Michael Barbour, the Director of the Office of Administrative Services, and his second-level supervisor was Linda Ruder, the Deputy Assistant Inspector General. Dkt. 33-22 at 5 (McCullough Aff. ¶¶ 14-19). According to McCullough, he had an extramarital affair with an OIG coworker, Brandie Miller. Dkt. 33-2 at 3 (Def.'s SUMF ¶ 10); Dkt. 33-22 at 17 (McCullough Aff. ¶ 77). After McCullough allegedly ended their romantic relationship in July 2011, their professional relationship soured, and several other employees became embroiled in the ensuing conflict. Dkt. 33-2 at 6 (Def.'s SUMF ¶ 21); Dkt. 33-22 at 17 (McCullough Aff. ¶ 77).

         Beginning in August and continuing through November 2011, Miller and other colleagues complained to management about McCullough's behavior. The complaints alleged the following: (1) that McCullough had spread spurious and inappropriate rumors about four colleagues: Miller, Allen Anthony, Jacqueline Wilson-Gooch, and Tiffany Tilghman, id. at 2 (Def.'s SUMF ¶ 7); (2) that McCullough had intentionally impeded Miller's and Anthony's ability to carry out their professional responsibilities, id. at 3 (Def.'s SUMF ¶ 8); and (3) that McCullough had made inappropriate comments about a pregnant job applicant, id. (Def.'s SUMF ¶ 9).

         The initial set of complaints was lodged by Miller and Miller's friend, Human Resources Specialist Kimberly Broden, and asserted that McCullough was spreading false rumors about Miller to their colleagues. See Id. at 3-4 (Def.'s SUMF ¶¶ 11-12). These complaints prompted Cindy Lowell, OIG's Human Resources Director, to raise the rumor issue with McCullough in September 2011. Id. at 4 (Def.'s SUMF ¶ 13). McCullough denied spreading the rumors, id. (Def.'s SUMF ¶ 13), and asserted that he suspected Miller, Broden, and Financial Management Analyst Tiffany Tilghman of stealing personal items from his office, id. at 5 (Def.'s SUMF ¶ 16); Dkt. 33-22 at 17 (McCullough Aff. ¶ 64). Although McCullough was repeatedly advised to report the thefts and to seek an investigation, he declined to do so multiple times. Dkt. 33-2 at 5 (Def.'s SUMF ¶ 17); see Id. at 6 (Def.'s SUMF ¶¶ 20-21); id. at 8 (Def.'s SUMF ¶ 28). Miller, Broden, and Tilghman, for their part, denied having any knowledge of the thefts. Id. at 5 (Def.'s SUMF ¶ 17); id. at 17 (Def.'s SUMF ¶ 65).

         Later in September, McCullough notified Lowell for the first time that he and Miller had engaged in a romantic relationship, that he had ended the affair, and that Miller and Broden were angry with him. Id. at 3-4 (Def.'s SUMF ¶ 10). McCullough also forwarded to Lowell an email from Broden and a voicemail from Miller, both of which expressed anger toward McCullough for his treatment of Miller. Id. at 6 (Def.'s SUMF ¶ 22). According to Lowell, McCullough reported that the situation had calmed down and that he did not want her to take any action. Id. at 6-7 (Def.'s SUMF ¶ 23).

         Meanwhile, the complaints regarding McCullough's behavior continued to mount. Allen Anthony, a new Support Services Specialist at OIG, reported to management that McCullough had started a false rumor about him. Id. at 7 (Def.'s SUMF ¶ 24). According to Anthony, McCullough told their colleagues that Anthony and Miller were involved in a sexual relationship. Id. (Def.'s SUMF ¶ 24).

         Anthony's complaint spurred Lowell to bring up the rumor issue with Ruder and Gregory Peters, the M&P Assistant Inspector General. Id. (Def.'s SUMF ¶ 25). Peters and Ruder agreed that management needed to warn the entire office that the rampant rumors were unacceptable. Id. (Def.'s SUMF ¶ 25). Accordingly, at an all-hands meeting on October 5, Peters announced a new policy titled "M&P Zero Tolerance Policy on Office Gossip and Rumors," which barred employees from rumor mongering. Id. (Def.'s SUMF ¶ 26); see Dkt. 33-1 at 7 ("At this point,, .. OIG management issued a 'Zero Tolerance Policy[']-----"); Dkt. 33-26 (Zero Tolerance policy). Under that policy, spreading gossip could result in discipline. Dkt. 33-2 at 7-8 (Def.'s SUMF ¶¶ 26-27); Dkt. 38-1 at 4 (PL's SDMF ¶¶ 26-27).

         In November, a few weeks after Peters's intervention, Personnel Security Specialist Jackie Wilson-Gooch reported a new rumor to Barbour and Lowell. Dkt. 33-2 at 8 (Def.'s SUMF ¶ 29). According to Wilson-Gooch, she had heard that McCullough falsely told a coworker that he had stayed overnight at Wilson-Gooch's house. Id. (Def.'s SUMF ¶-29). McCullough denied that he was the source of this rumor. Dkt. 38-1 at 5 (Plt.'s SDMF ¶ 29).

         In 2011, McCullough told Lowell that he felt he was being harassed. Dkt. 33-2 at 8 (Def.'s SUMF ¶ 31); Dkt. 38-1 at 5 (PL's SDMF ¶ 31). Although McCullough later clarified that he was referring to Tilghman, Lowell believed he was talking about Miller and Broden. Dkt. 33-2 at 8 (Def.'s SUMF ¶ 31 & n.4); Dkt. 33-16 at 8 (OGC Report at 7); Dkt. 33-19 at 7-9. Lowell, accordingly, met with the two women. Dkt. 33-2 at 9 (Def.'s SUMF ¶ 32). They denied having any new conflicts with McCullough or spreading any rumors, and neither one wished to pursue their own complaints further. Id. (Def.'s SUMF ¶ 32). McCullough, however, asked Lowell to "pursue an investigation of the alleged harassment and false rumors about him" and of the thefts. Dkt. 33-16 at 8 (OGC Report at 7).

         2. Internal Investigation and Findings

         OIG's Office of General Counsel ("OGC") conducted the investigation, which encompassed "McCullough's complaints" and "several complaints about McCullough's conduct." Dkt. 33-16 at 2 (OGC Report at 1). OGC interviewed nine employees: McCullough, Miller, Broden, Anthony, Wilson-Gooch, Tilghman, Barbour, and Lowell, as well as M&P Student-Office Automation Clerk Cedric Hopkins. Id. at 3 (OGC Report at 2). The investigation culminated in a comprehensive 19-page report issued on March 23, 2012 by OIG's General Counsel, William Blier. See Id. at 2 (OGC Report at 1).

         OGC's investigation revealed "a troubling lack of maturity and professionalism" in M&P, "primarily by McCullough, but by other M&P staff members as well." Id. at 2 (OGC Report at 1). The report reached three conclusions. OGC concluded, first, that "there was insufficient evidence" that Miller or Broden stole from McCullough or that Miller or her friends had harassed him. Id. at 3 (OGC Report at 2). Second, OGC was unable to substantiate the rumor allegations against McCullough:

While there was evidence to support Miller's and Tilghman's allegations that McCullough spread false rumors about Miller engaging in sexual relationships with numerous . . . employees, including McCullough's alleged admissions of such conduct to at least two M&P employees, we could not conclude by a preponderance of evidence that McCullough engaged in this serious misconduct.

Id. (OGC Report at 2). OGC, however, finally concluded that McCullough had "disrupted the M&P work environment by initiating inappropriate sexually-oriented discussions in the workplace with several colleagues" and "by refusing to cooperate with colleagues on work assignments." Id. (OGC Report at 2). In addition, the investigation revealed that McCullough "repeatedly complained" to coworkers "about the OIG hiring of a pregnant female." Id. at 19 (OGC Report at 18).

         3. Suspension Decision

         Two months later, on May 23, 2012, Ruder issued an official notice of proposed suspension to McCullough. See Dkt. 34-2 (Ruder Memo). Ruder proposed suspending McCullough for seven business days without pay "based on [his] conduct in: (1) initiating inappropriate sexually oriented discussions in the workplace with several colleagues; (2) intentionally obstructing [his] colleagues' work; and (3) making other inappropriate, potentially discriminatory statements in the workplace." Id. at 2 (Ruder Memo at 1).

         McCullough protested the proposed suspension, see Id. at 15 (Ruder Memo at 14); Dkt. 34-1 at 2, but on July 25, 2012, Peters formally decided that McCullough would be suspended for a period of seven business days, Dkt. 34-3 at 2 (Peters Memo at 1). Peters based his decision on the three grounds specified in Ruder's notice. Id. at 2 (Peters Memo at 1). McCullough served ...

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