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Bowling v. Shinseki

United States District Court, S.D. Georgia, Augusta Division

November 4, 2014

COLLEEN BOWLING, Plaintiff,
v.
ERIC SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.

ORDER

J. RANDAL HALL, District Judge.

Presently before the Court is Defendant Eric Shinseki's ("Defendant") motion for summary judgment. (Doc. 16.) Plaintiff, a former police officer with the Veterans Affairs Police Service, alleges that her termination and subsequent negative employment reference were acts of retaliation for complaints about sexual harassment by her training officer in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e-3(a) ("Title VII"). As discussed below, Defendant's motion for summary judgment is GRANTED.

I. BACKGROUND

In May 9, 2010, Plaintiff was hired by the Department of Veterans Affairs Police Department as a police officer. (Doc. 17, Ex. 1.) Her hiring was subject to completion of a probationary period of one year. (Id.) Plaintiff was assigned to Shift Supervisor Lieutenant Jerry Moore ("Moore"), and Lieutenant Quinn Bennett ("Bennett") was responsible for Plaintiff's training. ( Id., Ex. 3 "Bowling Dep." at 10-11, 13.)

On August 11, 2010, while on duty, Plaintiff and Bennett went to the Richmond County firing range. ( Id., Ex. 4 "EEO Hearing" at 41-42.) While there, both Bennett and Plaintiff used Veterans Affairs issued firearms and ammunition in order to complete state training certification. (Id.; Doc. 17, Ex. 11 "Williford Dep." at 45-48.) The unauthorized use of government property violated the Veterans Affairs' policy. (See Doc. 17, Ex. 6 at 13-14; Id., Ex. 17.)

Shortly after Plaintiff began her training, before the August 11, 2010 shooting range event, she and Bennett began text messaging each other, though the parties dispute who initiated the messages.[1] ( Id., Ex. 9 "Bowling Letter"; Id., Ex.7.) These text messages were of a mixed work and sexual nature. (Bowling Letter; Doc. 17, Ex. 7.) And while Plaintiff disputes whether any "relationship" existed, by her own testimony she considered the messaging to be part of a "certain amount of banter that goes into these professions that is not a big deal for me and for several people." (Bowling Dep. at 28.) Plaintiff alleges that Bennett inquired into her sex life, asking personal and sexually explicit questions.[2] (Bowling Letter.) After Bennett's wife discovered these text messages in September 2010, Plaintiff received an explicit and profane threatening text message from Bennett's wife. (Id.) Plaintiff was in Arkansas for training when the text was sent and, concerned for her health and safety, contacted Officer Kimberly Borresen ("Borresen"), a friend and colleague. (Id.; Bowling Dep. at 19-20.) Borresen then contacted Bennett and his wife to discuss the threat and later called Plaintiff to inform her the matter was handled and Plaintiff would not receive any more texts from Bennett. (Bowling Dep. at 20.)

Upon Plaintiff's return from Arkansas and at Moore's suggestion, Sergeant Lyn Banks ("Banks"), another Veterans Affairs employee, told Plaintiff she was no longer permitted to use her personal cell phone at work. (Id. at 20-21.) Plaintiff, visibly upset, and assuming the request had something to do with the Bennett situation, told Banks about what had transpired. (Id.) At this point, Banks instructed Plaintiff that she must report the relationship to Moore or Banks would do so herself. (Id.) On September 30, 2010, Plaintiff submitted a written statement to her supervisor detailing the entirety of her relationship with Bennett. (Bowling Letter.) In the letter, Plaintiff explained that she "was worried that [] Bennett or his wife would go to the Chief [] and [she] would not be there to defend [herself]." (Id.) Days later, Assistant Chief Tim Williford ("Williford"), Moore's supervisor, provided Plaintiff with an EEO Sexual Harassment Packet. (Bowling Dep. at 22-23.) Williford interviewed both Plaintiff[3] and Bennett following the complaint. (Doc. 17, Exs. 8, 10.) Defendant claims that it was during this investigation that it learned about Plaintiff's and Bennett's August trip to the shooting range, a fact Plaintiff vehemently disputes. (Compare id., Ex. 11 at 23-24 with id., Ex. 9.) Plaintiff does not dispute, however, that she and Bennett went to the range and completed the state certification, only that her superiors knew long before the investigation into the inappropriate messaging. (EEO Hearing at 41-42.) Following Williford's investigation, Police Chief Thomas Howe submitted a memo to Human Resources recommending that Plaintiff's employment be terminated. (Doc. 17, Ex. 15.) Before Human Resources approved the termination, Plaintiff received a performance appraisal from her supervisor in which she was rated as "fully successful." ( Id., Ex. 16.) On November 1, 2010, Plaintiff received a termination letter dated October 29, 2010, identifying "unacceptable personal conduct and improper and unauthorized use of Department of Veteran[]s Affairs equipment and supplies" as the cause of her firing.[4] ( Id., Ex. 17.)

After being fired, Plaintiff initiated EEO proceedings. The EEO Administrative Hearing Officer concluded, after a thorough investigation, that Plaintiff failed to prove disparate treatment on the basis of sex, retaliation, or hostile work environment. Bowling v. Shinseki, EEOC No. 410-2011-00326X (December 12, 2012).

Also after her firing, Plaintiff applied for a job with the Richmond County Sheriff's Department and, on November 19, 2010, signed a "Release of Information Waiver, " which authorized "full and complete disclosure of all employment and pre-employment records."[5] (Doc. 17, Ex. 18.) On January 6, 2011, Williford completed an employment reference for Plaintiff that described her integrity as "below average" and stated that she was "[r]eleased during probation due to unacceptable personal conduct and improper and unauthorized use of Department of Veteran[]s Affairs equipment and supplies." (Id.)

Based upon these facts, Plaintiff filed two claims in this Court, both asserting that she was retaliated against for her September 30, 2010 complaint of Bennett's sexual harassment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986), and must draw "all justifiable inferences in [its] favor." U.S. v. Four Parcels of Real Prop. , 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways - by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc. , 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickes v. S.H. Kress & Co. , 398 U.S. 144 (1970) and Celotex Corp. v. Catrett , 477 U.S. 317 (1986)). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus , 120 F.3d 248, 254 (11th Cir. 1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark , 929 F.2d at 608.

If - and only if - the movant carries its initial burden, the non-movant may avoid summary judgment only by "demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment." Id . When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated." Fitzpatrick , 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id . at 1117. The non-movant cannot carry its burden by relying on the ...


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