United States District Court, D. Minnesota
Cynthia Metivier, pro se.
Voss, United States Attorney's Office, Minneapolis, MN,
for Defendant David Bernhardt.
OPINION AND ORDER
C. Tostrud United States District Judge
Cynthia Metivier worked for the U.S. Department of the
Interior (the “Department”) for nearly twelve
years before her employment was terminated in July 2014 after
budget shortfalls within the federal government. In this
case, she brings claims for: (1) sex discrimination; (2)
reprisal or retaliation; and (3) creation of a hostile work
environment, all in violation of Title VII of the Civil
Rights Acts of 1964 and 1991, 42 U.S.C. § 2000e, et
seq.; and (4) violations of the Whistleblower Protection
Act of 1989 (“WPA”) and the Whistleblower
Protection Enhancement Act of 2012 (“WPREA”), 5
U.S.C. §§ 2301(b), 2302(b)(1), (b)(4), and (b)(8),
(b)(9), (b)(13), 2302(a)(2)(a); Pub. L. No. 112-199, 126
Stat. 1465. Am. Compl. ¶ 7 [ECF No. 34]. Defendant David
Bernhardt, the Secretary of the Department, moves for summary
judgment on all of Metivier's claims, ECF No. 51, and
that motion will be granted. Though Metivier asserts many
facts in support of her several legal claims, she has failed
as a matter of law to identify evidence supporting essential
elements with respect to each of her claims.
was employed by the Department in a variety of roles for
nearly 12 years until her employment was terminated,
effective July 22, 2014. Metivier Decl. ¶ 2 [ECF No.
67]; Metivier Dep. Ex. 18 at 1 [ECF No. 55-18]. The period of
that employment most salient to these proceedings ran from
June 2011 through July 2014, when she was a level G-15
Attorney Advisor with the Department's Office of Hearings
and Appeals (“OHA”). Metivier Dep. Ex. 8 [ECF No.
55-8]. In that position, she administered cases involving the
White Earth Land Reservation Settlement Act
(“WELSA”), Pub. L. 99-264, March 24, 1986, 100
Stat. 61. Metivier Dep. 30-32 [ECF No. 55]. Accordingly,
Metivier's workplace in Bloomington, Minnesota will be
referred to as the “WELSA division.” Metivier
joined the WELSA division in February 2010. Metivier Dep. at
March 2010 until January 2013, Metivier's direct
supervisor in the WELSA division was Janet Goodwin, Principal
Deputy to the OHA Director. Goodwin Decl. ¶ 3 [ECF No.
56]. In January 2013, Goodwin became Acting Director of OHA;
she was named Director in September 2013. Id.
¶¶ 2-3. In those roles, she was Metivier's
second-line supervisor, and Hope Mentore-Smith, who succeeded
Goodwin as Principal Deputy Director, was Metivier's
direct supervisor until the end of Metivier's employment.
Id. ¶ 3. Even after Goodwin's change in
title, however, she continued to directly oversee
Metivier's work in at least some respects. Metivier Dep.
at 206-07. Throughout the relevant time, Goodwin was based in
Arlington, Virginia, and she, and later apparently also
Mentore-Smith, supervised the WELSA division remotely.
Id. at 117.
WELSA division was a small office; Metivier never supervised
more than two staff members at a time. Id. at 34.
When Metivier joined WELSA, she supervised a staff of one, a
paralegal named Pam Meinen. Id. at 34, 44. At some
point, she hired a legal assistant, Greig Dahlke.
Id. at 48. Later, Meinen was replaced as the WELSA
division's paralegal by Cheryl Schwartz. Id. at
46, 48, 75. At some point after Schwartz came on board,
Dahlke left, and for about one year, Schwartz and Metivier
were the only employees in the WELSA division until Melody
Negron joined the office as a legal assistant. Id.
at 75. Metivier conducted the regular performance ratings for
at least Dahlke and Schwartz, and Goodwin reviewed those
ratings as Metivier's supervisor. Id. at 51.
2009, before joining the WELSA division, and while working
under a different supervisor and in a different role within
the Department, Metivier had initiated an Equal Employment
Opportunity (“EEO”) complaint alleging sex
discrimination by her then-supervisor, administrative law
judge Richard Hough. Metivier Decl. ¶ 4. It was the
first time Metivier had ever filed a complaint against a
supervisor. Id. The details of that complaint are
not directly relevant to this case, but to some extent that
EEO proceeding casts a shadow over this one. Ultimately, her
2009 EEO complaint was resolved through a settlement with the
Department on June 3, 2011. Id. Metivier did not
seek or receive any money as a part of the settlement.
Metivier Dep. at 148. As part of the settlement agreement,
the Department agreed to convert Metivier from a term
employee (a temporary employment status) to a permanent one,
with a duty station in the Twin Cities metropolitan area,
where she had purchased a home. Id. at 149-50;
Metivier Dep. Ex. 7 at 2 [ECF No. 55-7]. Metivier's sole
goal in the EEO proceeding was “to be able to do [her]
job without being harassed.” Metivier Dep. at 150.
Goodwin was not involved in that EEO complaint, and only
learned about it when she became Principal Deputy Director.
Goodwin Decl. ¶ 6.
point in 2011, the WELSA division had to be relocated from
the Whipple Federal Building in Bloomington, Minnesota while
that building was renovated. Id. ¶ 7. Goodwin
and Metivier toured potential office space together.
Id. During that tour, Goodwin stated that she
“did not think it was financially advantageous for OHA
to spend money for a new WELSA office when there was space
available in other OHA offices under existing leases.”
Id. Metivier believes that this sentiment “was
in defiance of the terms of the settlement agreement.”
Metivier Br. at 5 [ECF No. 65]. Notwithstanding Goodwin's
opinion, however, she did ensure that the WELSA division
secured an office lease “in new and appropriate
space.” Goodwin Decl. ¶ 7. Metivier contends that
Goodwin initially did not want to provide the WELSA division
with adequate office equipment, such as a reception desk,
until Goodwin's supervisor intervened and eventually that
equipment was provided. Metivier Decl. ¶ 7. Metivier
also alleges that the telephone system never worked properly
in the Bloomington office location, and that Goodwin did not
ensure that it was fixed promptly. Id. ¶ 7.
work in the WELSA division generally was of high quality. For
Metivier's performance appraisals for fiscal years 2010
through 2013, Goodwin served as Metivier's rater.
Metivier Dep. at 117-19 (2012), 130-31 (2010 and 2011), 137
(2013). The categories in which Metivier was rated were
consistent over that time period: her strategic management of
human capital (Critical Element 1), the number of non-probate
cases concluded (Critical Element 2), the quality of her
analysis and writing in her decisions (Critical Element 3),
and a summary rating calculated based on her rating for each
of the three critical elements. See generally
Metivier Dep. Exs. 2, 4-6 [ECF Nos. 55-2, 4-6]. In each of
Metivier's four annual reviews, Goodwin gave Metivier the
highest possible rating of “Exceptional” on
critical elements 2 and 3, relating to the quantity and
quality of her work product. See Id. And in the
2010, 2011, and 2013 reviews, Goodwin rated Metivier as
either “Fully Successful” or
“Superior” on critical element 1, relating to her
supervisory and managerial duties. Metivier Dep. Exs. 4-6.
Those ratings correspond to the third and fourth highest of
the five available ratings. Id. Based on the ratings
in those categories, Goodwin calculated Metivier's
summary ratings either “Superior” or
“Exceptional” for 2010, 2011, and 2013-the two
highest summary ratings possible. Id.
Metivier's 2012 rating for personnel management, and
consequently her summary rating, were anomalously low.
See generally Metivier Dep. Ex. 2. The reason
Goodwin rated Metivier poorly that year relates to
circumstances surrounding the abrupt resignation of the WELSA
division's paralegal, Cheryl Schwartz, in September 2012.
Goodwin Decl. ¶ 9. In mid- to late September 2012,
Goodwin received a phone call from Schwartz. Id.
¶ 10. Schwartz was very upset and told Goodwin that she
was being harassed and verbally abused by
Metivier. Id. Goodwin asked Schwartz to
describe her allegations in an email and to include as many
details as possible. Id. Schwartz did so on
September 18, 2012. Goodwin Decl. Ex. 22 [ECF No. 56-1].
Schwartz and Goodwin traded emails over the next few days,
with Goodwin requesting more information and Schwartz
responding. Id. Midway through the work day on
September 20, 2012, Schwartz walked out and resigned,
effective immediately. Metivier Dep. at 84-85. Metivier was
shocked. Id. She asked Negron if she knew why
Schwartz had walked out, and Negron, looking uncomfortable,
suggested that Metivier should talk to Goodwin. Id.
at 87. Metivier called Goodwin immediately to ask what was
going on, but Goodwin responded “curtly” that she
was not yet ready to talk about it. Id. at 87-88;
Metivier Decl. ¶ 11.
Goodwin asked the Department's Solicitor General's
Office for advice on how to proceed, and she was told to
investigate Schwartz's report. Goodwin Decl. ¶ 11.
In doing so, she spoke to Dahlke, who submitted a written
statement. Goodwin Decl. Ex. 23 [ECF No. 56-2]. In some
respects, Dahlke's statement corroborated Schwartz's
allegations-for example, he reported that in his opinion,
Metivier was at times “abusive” to Schwartz,
mainly when Schwartz made errors in her work, and that he had
observed Schwartz leaving the office in tears after Metivier
had berated her for making a mistake during a training.
Id. at 5. He also stated that Schwartz had a
“moderately poor work performance, ” consistently
made errors in drafting decisions-some of which were caught
by Dahlke or Metivier before the decisions were issued, and
some of which were not, which meant the decisions included
errors when they were issued-and that Schwartz did not take
feedback well. Id. at 2.
also spoke directly with Metivier in investigating
Schwartz's allegations. Goodwin Decl. ¶ 12. Metivier
denied engaging in harassing, abusive, or otherwise
inappropriate conduct toward Schwartz. Metivier Decl.
¶¶ 13-16. In a series of conversations on September
20 and 21-the day Schwartz quit and the day following-
Goodwin continued to press Metivier as to why Schwartz would
suddenly quit if her allegations about Metivier's conduct
were not true; Metivier responded that she did not know why,
but she continued to insist that the allegations were untrue.
Metivier Decl. ¶¶ 12-16. Eventually, on September
21, “after hours of intense questioning, ”
Metivier speculated to Goodwin that Schwartz may have been
under stress from the lengthy period of time when the WELSA
division had been understaffed (Negron had only recently
joined the office, and the division had been without a legal
assistant for nearly a year, ever since Dahlke's
departure) and from various problems with office technology.
Metivier Decl. ¶ 16; Metivier Dep. Ex. 20 at 18 [ECF No.
55-20]. Goodwin stated in her declaration that Metivier told
her that Schwartz had “resigned because she was
overwhelmed with frustration at her own incompetence, ”
Goodwin Decl. ¶ 12, but Metivier seems to disagree with
that characterization, allowing only that Metivier had spoken
with Schwartz “regarding areas where improvement was
needed, ” Metivier Dep. Ex. 20 at 18. Metivier explains
that while Goodwin has a harsher, discipline-driven
management style, Metivier's own management style is to
try to work as a team to address issues “without going
to the extreme.” Metivier Dep. at 65. Metivier had
never reported any concerns to Goodwin about Schwartz's
performance, or imposed any sort of formal discipline on
Schwartz for poor performance, and according to Goodwin, did
not provide evidence of any attempts as Schwartz's
supervisor to address performance problems. Metivier Dep. at
56, 64, 66; Goodwin Decl. ¶ 13. Indeed, Metivier had
previously given Schwartz a positive review and had recently
requested that Schwartz's term appointment be renewed.
Goodwin Decl. ¶ 13.
concluded that Metivier had failed to maintain a professional
relationship with Schwartz, a subordinate, and did not meet
her obligations regarding the management of Schwartz's
performance. Id. ¶ 9. As a result, on
Metivier's 2012 performance evaluation, Goodwin gave
Metivier the second-lowest possible rating of
“Minimally Successful” with respect to her
supervisory and managerial duties. Id.; Metivier
Dep. Ex. 2. Goodwin explained that she did not find
Metivier's explanations for Schwartz's departure
credible, and that “[e]ven if [Schwartz] had been
unable to perform her job, or had engaged in misconduct, [ ]
Metivier should have addressed the issues properly in a fair
and timely manner.” Metivier Dep. Ex. 2 at 4. Because
she had given Metivier a “Minimally Successful”
rating in one of the evaluation categories, the structure of
the form required Goodwin to give her a summary rating of
“Minimally Successful, ” too. See
Metivier Dep. Ex. 2 (“Fully Successful” summary
rating based on criterion of “No Critical element rated
lower than “Fully Successful”). As a result,
Metivier did not receive a bonus that year, although her base
pay was unaffected. Metivier Dep. at 137; Metivier Dep. Ex. 2
at 1. Metivier requested that Goodwin reconsider her 2012
performance review, but Goodwin declined. Goodwin Decl.
¶ 14; Metivier Decl. Exs. F, G [ECF No. 67-1 at 20, 24].
In late January 2013, Metivier again sought reconsideration
of her 2012 performance review, Metivier Decl. Ex. I [ECF No.
67-1 at 79], but John Ross, Director of Valuation Services-a
separate division of the Department to which Metivier
directed her request- denied the request on February 11,
2013, Metivier Dep. Ex. 3 [ECF No. 55-3]. Ross did not find
evidence to support Metivier's request. Id.
February 4, 2013, Metivier filed an informal grievance on a
number of issues, including the 2012 performance review as
well as various complaints about the WELSA division's
office technology and Goodwin's interpersonal demeanor
and alleged management deficiencies. See Metivier
Decl. Ex. J [ECF No. 67-1 at 83]. The facts she alleged
relating to those complaints make no reference to issues
relating to sex-based discrimination. See generally
Id. The only arguable reference the grievance made to
sex-based discrimination appears among the various types of
relief Metivier sought through the informal grievance.
Specifically, she requested that her “Direct Supervisor
show respect generally afforded to judges and supervisors
regardless of gender, including but not limited to,
” among other things, “[r]efer[ring] to
[Metivier] by my official title as ‘Administrative
Judge' when addressing subordinates or clients so as to
avoid disparate treatment based on gender.”
Id. at 4 (emphasis added).
February 19, 2013, a number of Metivier's grievances and
requested relief were rejected as insufficiently detailed,
untimely, or outside the scope of the grievance procedures.
Metivier Dep. Ex. 10 [ECF No. 55-10]. With respect to
Metivier's gender-related complaints, the responding
official stated that she “did not find evidence to show
that Ms. Goodwin is undermining your authority” and
“did not find evidence of disparate treatment based on
gender” with respect to the use of professional titles.
Id. at 2.
the reviewing official “noted that your
[Metivier's] official title is Attorney-Advisor, ”
not Administrative Judge, though the reviewing official did
recommend to Goodwin that “she ensure there is no
disparate treatment in established internal office
communication.” Id. at 2-3.
after Metivier's 2012 performance review, on January 11,
2013, Goodwin proposed suspending Metivier for three days
without pay for conduct unbecoming a supervisor. Goodwin
Decl. ¶ 16; Metivier Dep. Ex. 1 [ECF No. 55-1]. The
proposed suspension was based in substantial part on the
circumstances surrounding Schwartz's departure, but also
alleged that Metivier had made “unsubstantiated”
statements tending to damage the reputation of both WELSA
division's legal assistant and OHA's
information-technology (“IT”) specialist, and had
engaged in uncooperative and discourteous treatment of
OHA's IT specialist, which Goodwin had personally
witnessed. See generally Metivier Dep. Ex. 1.
Goodwin stated in her declaration that the proposed
discipline was not based on Metivier's gender or prior
protected activity. Goodwin Decl. ¶ 18. The proposed
discipline could not be implemented unless and until it was
approved by the Office of the Secretary. Id. ¶
16. Metivier sought review of the proposed discipline on
January 21, 2013, but ultimately it was approved on March 14,
2013. Id. ¶ 17; Metivier Dep. Ex. 11 at 1 [ECF
February 27, 2013-shortly after Metivier's informal
grievance alleging, among other things, disparate treatment
in the respect and use of professional titles accorded to men
and women was resolved, and while the proposed three-day
suspension was under consideration, but before it was
approved-Metivier contacted EEO. Am. Compl. ¶ 23;
Metivier Dep. at 173. The Parties do not describe the
substance of that February 2013 communication, but they seem
to agree it alleged that Metivier was subjected to some form
of sex-based discrimination or reprisal.
lawsuit, Metivier takes issue with a number of changes that
occurred in the WELSA division in the months following
in late January 2013, Goodwin instituted weekly calls with
the Principal Deputy Director, Metivier, and Metivier's
support staff. Goodwin Decl. ¶ 19; Metivier Decl. Ex. U
[ECF No. 67-1 at 146] (stating that Goodwin announced on
January 30, 2013 that she would implement weekly calls).
Goodwin and the Principal Deputy Director had weekly status
calls with OHA's other organization units at that time,
as well. Goodwin Decl. ¶ 19. Metivier takes issue with
the weekly check-in calls, though, on the basis that they
began after Metivier's three-day suspension and because
Goodwin had never before required any other office-including
the WELSA division, which was run by a man before Metivier
assumed the role in 2010-to have weekly calls. Metivier Dep.
after Schwartz quit in September 2012, her position was not
filled, and Metivier did not have a paralegal on staff for
the rest of her time in the WELSA division. Metivier Dep. at
94; Metivier Decl. ¶ 10. Schwartz's departure
coincided with preparations for a possible sequester in the
event that Congress was unable to pass a budget. Goodwin
Decl. ¶ 29. Managers within the Department were warned
of the possibility of a sequester in 2012, and in February
2013, the Secretary formally announced the sequester and
implemented a hiring freeze. Id. ¶¶ 29-30;
Goodwin Decl. Ex. 24 [ECF No. 56-3]. Under the hiring freeze,
vacancies were not to be filled unless offers had already
been made to prospective employees by the personnel office.
Goodwin Decl. ¶ 30; see also Goodwin Decl. Ex.
24. At some point before Director Bob More left his position
on January 3, 2019 and Goodwin succeeded him as Acting
Director, More had authorized Metivier to hire a replacement
paralegal, and Metivier had interviewed candidates for the
position but, according to Goodwin, “the process had
not been completed and no offers had been extended.”
Goodwin Decl. ¶ 31; Metivier Decl. ¶ 34. Metivier
says she had interviewed and made an offer to a particular
candidate, see Metivier Decl. ¶ 34, but points
to no evidence that the personnel office had extended an
offer to that candidate or been informed that Metivier had
done so on her own. Although it was possible to seek an
exception to the hiring freeze in some circumstances, Goodwin
determined that it would be inappropriate to do so with
respect to hiring a replacement for Schwartz because seeking
an exception would require Goodwin to “sign a
certification that the work previously performed by
[Schwartz] could not be adequately performed elsewhere in OHA
by existing employees”-a statement that Goodwin
believed would be untrue. Goodwin Decl. ¶ 33. Third, to
try to accommodate the reduced staffing in the WELSA division
following the hiring freeze, Goodwin began the process of
reassigning some of the WELSA caseload to another division of
OHA located in Salt Lake City, Utah. Id. ¶ 34.
Goodwin determined that having the team in Salt Lake City
support the WELSA division would reduce Metivier's
workload to a level that could be managed even without a
paralegal on staff. Id. ¶¶ 32, 34. Goodwin
informed Metivier of that decision by phone on April 16 and
by email the following day. Id. ¶ 34; Goodwin
Decl. Ex. 25 [ECF No. 56-4].
Metivier believes that the manner in which cases were
reassigned to Salt Lake City resulted in the WELSA division
keeping the older, more challenging cases that had already
lingered for a while, while Salt Lake City received newer
cases that had a higher ...