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Kirby v. Brennan

United States District Court, D. Minnesota

March 27, 2017

Millicent Kirby, Plaintiff,
Megan Brennan, Postmaster General, Defendant.

          Jeffrey D. Schiek, Philip G. Villaume, Thomas Priebe, and Lisa McLeod-Lofquist, Villaume & Schiek P.A. for Plaintiff.

          Matt J. Cole and Timothy Vavricek, United States Attorney's Office, for Defendant.


          SUSAN RICHARD NELSON, United States District Judge


         Plaintiff Millicent Kirby, an employee of the United States Postal Service, Office of Inspector General (“OIG”), brought this suit against Defendant Megan Brennan, [1] the Postmaster General, alleging sex discrimination, retaliation, and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq. Defendant now moves for summary judgment on those claims. (See generally Def.'s Mot. for Summ. J. [Doc. No. 73].) For the reasons set forth below, Defendant's Motion is granted.


         A. Factual History

         The events underpinning this lawsuit stem from a background interview conducted on May 20, 2011. As part of her duties as a special agent with the OIG, Kirby was required to undergo a full background check every five years. (See Priebe Aff. [Doc. No. 78], Ex. J at 19.) On this particular occasion, the interview was conducted by an outside contractor, Daniel Budnick. (See id., Ex. P at 13-14.) According to Kirby, Budnick made several sexually-suggestive or inappropriate remarks during the interview, including discussing his wife's breasts, referring to his testicles, and repeatedly telling Kirby that she was “beautiful.” (See id., Ex. Q (“Kirby Dep.”) at 18-19.) After the interview concluded, Budnick also apparently asked Kirby's co-worker, Stephen Pizinger, if she had ever appeared in a pornographic video. (See Priebe Aff., Ex. K at 16-17.)

         Kirby immediately reported Budnick's inappropriate behavior to her supervisor, Assistant Special Agent in Charge (“ASAC”) Mark Hines. However, Kirby declined to make a formal complaint because she feared Budnick might retaliate in some way. (See Kirby Dep. at 22.)

         Approximately five months after her interview with Budnick, Kirby was called in to meet with ASAC Hines regarding certain red flags that had arisen as a result of her background check. In particular, the background check had disclosed that Kirby's live-in boyfriend, Todd Weyker, had an extensive criminal history, which Kirby had failed to disclose to Budnick. (See Cole Decl. [Doc. No. 76], Exs. 6, 7.) Complicating matters, it later emerged that although Kirby had properly disclosed that she was living with Weyker, Budnick had failed to ask whether he had a criminal record. Instead, Budnick had improperly recorded-on his own initiative-that Kirby did not associate with individuals with criminal records. (See Priebe Aff., Ex. B at 4.) Apparently in light of this discrepancy, the OIG had asked ASAC Hines to determine whether Kirby even knew that she was living with a felon. (See Cole Decl., Ex. 21 (“Hines Dep.”) at 12.)

         During her interview with ASAC Hines, Kirby conceded that she did indeed know of Weyker's criminal history. (Id., Ex 7 at 1.) ASAC Hines relayed this information to his superiors, and the OIG determined that an internal affairs (or “SID”) investigation was warranted out of concern that Weyker might have improper access to Kirby's service weapon. (See Hines Dep. at 11.) While the SID investigation was ongoing, ASAC Hines placed Kirby on “desk duty, ” which entailed various material changes to her job duties, and also required that she relinquish her service vehicle and weapon. (See Priebe Aff., Ex. J at 29-30.) In his deposition, ASAC Hines admitted that this was the first time he had ever put anyone on desk duty, and Pizinger testified that he “had never seen” anyone else placed in that position at the OIG. (Id. at 30; Priebe Aff., Ex. K at 103.)

         In her interview with the SID investigator, Kirby revealed that she frequently left her duty weapon unsecured on her kitchen counter when at home. (Cole Decl., Ex. 3 at 14-16.) This action is apparently in violation of OIG firearms policy, which requires that “OIG firearms shall be secured at [special agent's] residences in a manner to preclude access to the weapon by anyone other than the [special agent] to whom it is issued.” (See id., Ex. 9 at 1.)

         On the basis of the completed SID report, ASAC Hines issued a Letter of Warning (“LOW”) in Lieu of a Three-Day Time-Off Suspension to Kirby on February 21, 2012. (See generally id.) The LOW levelled two specific charges against Kirby stemming from her interview with Budnick: (1) that she had been careless in the performance of duty due to her failure to follow the OIG firearms policy, and (2) that she had improperly withheld information relating to Weyker's criminal history during her background interview. (See id.) With regard to the latter charge, ASAC Hines asserted that even though Kirby may not have thought Weyker's criminal record was relevant to the background check, she had a duty to report such information voluntarily to the OIG and let her superiors determine its relevance. In ASAC Hines's view, Kirby's conduct did not meet the high standard expected of OIG personnel. (Id. at 2.)

         Kirby appealed the LOW to Special Agent in Charge (“SAC”) David Barnes, her third-line supervisor. SAC Barnes ultimately sustained the charges in the LOW, although at Kirby's request he amended the first charge to read “Violation of Firearms Policy” instead of “Careless Performance of Duties.” (See Priebe Aff., Ex. S.) In accordance with OIG policy, Kirby then appealed SAC Barnes's decision to her fifth-line supervisor, Deputy Assistant Inspector General for Investigations (“DAIGI”) Lance Carrington. (See Cole Decl., Ex. 20 at 20.) It is undisputed that DAIGI Carrington had never met Kirby. (See Cole Decl., Ex. 26 at 7.) After reviewing the LOW and the SID report, DAIGI Carrington decided to uphold the violations of firearms policy charge, but rejected the withholding information charge. (See id., Ex. 10 at 1.) At his deposition, DAIGI Carrington testified that he thought that ASAC Hines and SAC Barnes were “a little overly sensitive” to the withholding information charge, and that the evidence did not substantiate their opinions. (See Priebe Aff., Ex. T at 27.) Nonetheless, he agreed with SAC Barnes that Kirby's failure to follow the OIG firearms policy was “extremely careless” and “not acceptable.” (See Cole Decl., Ex. 10 at 2.) In light of the revised charges, however, DAIGI Carrington decided to “mitigate the penalty from a Letter of Warning in Lieu of a Three Day Time-Off Suspension to a Letter of Warning.” (Id. at 3.) The LOW was to remain in Kirby's personnel file for two years, and then be removed. (Cole Decl., Ex. 20 at 32.)

         On March 7, 2012, Kirby applied for an ASAC position in Greensboro, North Carolina. (Id. at 21.) A review panel consisting of ASACs Mary Giberson, Shafee Carnegie, and George Castillo convened to consider the qualifications of the twelve applicants for the position. (See Cole Decl., Ex. 13. at 1-2.) Kirby and three male applicants received an overall review score of zero points on the “Team Rating Worksheet, ” based on failure to demonstrate minimum proficiency in one or more of the evaluation criteria. (See id., Ex. 16C at 3.) Accordingly, Kirby's name was not forwarded to the selecting official for the Greensboro position.

         Kirby testified that she was not given a fair opportunity to compete for the Greensboro position “because Lance Carrington was the DAIGI over the area.” (Kirby Dep. at 163.) In her opinion, the denial of a chance to interview for the job was “part of the retaliation for me filing a complaint.” (Id.) However, all three members of the review panel submitted affidavits indicating that they did not know Kirby at the time they made their decision, and did not know about any complaints she had made relating to sex discrimination, retaliation, or hostile work environment. (See id., Exs. 13, 14, 15.) ASACs Giberson and Castillo also filed supplementary affidavits indicating that they were unaware of the existence of the 2012 LOW.[2] (See Second Cole Decl., Exs. 13A, 14B.) DAIGI Carrington likewise filed a supplementary affidavit stating that he did not discuss the LOW with any individual involved with hiring for the Greensboro position, and did not participate in the selection process. (See id., Ex. 28.) Ultimately, the record shows that a male candidate with the highest overall score, but with fewer years of work experience than Kirby, was chosen for the position.[3]

         Kirby was given a second LOW on February 25, 2014-this time by ASAC Joseph Schwartz. The LOW documented three instances of failure to follow instructions, one instance of careless performance of duties, and two instances of unprofessional conduct. (See Cole Decl., Ex. 11.) Kirby appealed ASAC Schwartz's determination to Deputy Special Agent in Charge (“DSAC”) Steven Stuller, who upheld the LOW on all counts. (See id., Ex. 24 at 9.)

         B. Procedural History

         Kirby brought this lawsuit in January 2014, and filed the operative complaint on January 8, 2015. (See Second Am. Compl. [Doc. No. 39].) In that document, Kirby set forth two causes of action against Defendant: “Discrimination in Violation of Federal Law” (Count I), and “Retaliation/Reprisal in Violation of Federal Law” (Count II). (See Id. at ¶¶ 112-79.) Defendant moved to dismiss the complaint on February 9, 2015. (See Mot. to Dismiss [Doc. No. 40].)

         On July 10, 2015, this Court entered an order granting Defendant's motion in part, and denying it in part. See Kirby v. Donahoe, No. 14-cv-270 (SRN/TNL), 2015 WL 4208694 (D. Minn. July 10, 2015). A few aspects of that order are of particular relevance to this decision. First, because Kirby failed to specify in her complaint what federal statute provided the basis for her claims, the Court construed those claims as arising under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.[4] Second, although the complaint specifically alleges only claims for discrimination and retaliation, the Court noted that Kirby “repeatedly refers to being subjected to a ‘hostile work environment.'” Kirby, 2015 WL 4208694, at *5. Accordingly, the Court analyzed the pleadings as stating causes of action for discrimination, retaliation, and also retaliatory hostile work environment. See Id. at *5, 13. Finally, although Kirby's complaint alleged numerous factual bases supporting her claims, the Court concluded that many of those facts were either time barred or insufficiently pleaded. See Id. at *5-13. Thus, at this stage of the proceedings, only the following aspects of Kirby's claims remain ...

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