United States District Court, District of Columbia
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
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
following facts are undisputed except where noted.
Allegations of Misconduct
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).
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
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).
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).
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).
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
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
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).
Internal Investigation and Findings
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).
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).
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).
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 ...