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Metivier v. Bernhardt

United States District Court, D. Minnesota

October 31, 2019

Cynthia Metivier, Plaintiff,
David Bernhardt, [1] Secretary, United States Department of the Interior, Defendant.

          Cynthia Metivier, pro se.

          Ana H. Voss, United States Attorney's Office, Minneapolis, MN, for Defendant David Bernhardt.


          Eric C. Tostrud United States District Judge

         Plaintiff 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.

         I [2]

         Metivier 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 35.


         From 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.

         The 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.


         In late 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.

         At some 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.


         Metivier's 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.

         But 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.[3] 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.[4] 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.

         Meanwhile, 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.

         Goodwin 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.

         Goodwin 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.


         On 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).

         On 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.

         Additionally, 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.


         Shortly 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 No. 55-11].


         On 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.


         In this lawsuit, Metivier takes issue with a number of changes that occurred in the WELSA division in the months following Schwartz's departure.

         First, 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. at 176.

         Second, 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].

         Fourth, 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 ...

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