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Windham v. Barr

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

March 28, 2019

WILLIAM P. BARR, in his official capacity as Attorney General of the United States; UNITED STATES DEPARTMENT OF JUSTICE; and FEDERAL BUREAU OF PRISONS, Defendants.[[1]]



         This Title VII action is before the Court on Defendant William P. Barr's Motion for Summary Judgment. (Doc. 60.) Plaintiff Connie L. Windham filed a response Brief in Opposition, (doc. 63), and Defendant filed a Reply, (doc. 65). In this Title VII retaliation case, Plaintiff brings claims of retaliatory transfer and retaliatory hostile work environment arising out of her employment with the Federal Bureau of Prisons (“BOP”) at Federal Correctional Institution Jesup (“FCI Jesup”). (See Doc. 1.) Defendant moves for summary judgment, arguing that certain retaliatory transfer claims are barred by Plaintiff's failure to exhaust and that Plaintiff fails to establish sufficient evidence, in light of the undisputed facts, to support her remaining retaliation claims. (Doc. 60.) Plaintiff contends, in response, that genuine issues of material fact remain as to whether Defendant retaliated against her and that summary judgment should thus be denied. (Doc. 63). As explained below, however, the Court finds that the evidence presented by Plaintiff in this case is not enough for a reasonable jury to find that Defendants retaliated against her within the meaning of Title VII. Thus, for the reasons which follow, the Court GRANTS Defendant's Motion for Summary Judgment. (Doc. 60.) The Court DIRECTS the Clerk of Court to enter summary judgment in favor of Defendant and to CLOSE this case.


         I. Procedural History

         On September 9, 2014, Plaintiff filed this action pursuant to the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”). (Doc. 1.) Defendant moved to dismiss the Complaint, arguing that Plaintiff failed to exhaust her retaliation claims or otherwise plead an adverse employment action and that she failed to state any claims of gender discrimination. (Doc. 9.) Defendant also contended Plaintiff could not recover punitive damages as a matter of law. (Id.) After briefing on these issues, (docs. 15, 17, 21), the Court granted in part and denied in part Defendant's Motion. (Doc. 28.) In so doing, the Court found that Plaintiff had failed to exhaust her retaliation claim regarding denied overtime and that she had failed to plead a claim of gender discrimination; the Court also dismissed Plaintiff's punitive damages claim. (Id.) However, the Court found Plaintiff stated cognizable retaliation claims regarding alleged wrongful transfers and a hostile work environment. (Id.)

         Discovery ensued thereafter and, following an extension of time, (docs. 36, 38, 40, 42), ended on May 4, 2018. During the discovery period, the parties entered a Stipulation by which they limited the claims Plaintiff could bring. (See Doc. 44.) The parties stipulated that claims arising from Paragraph thirty-seven of Plaintiff's Complaint, which concerns Defendant's alleged failure to promote or hire Plaintiff to several positions at FCI Jesup, (doc. 1), were withdrawn and dismissed without prejudice. (Id.) Further, the parties agreed that Plaintiff would not introduce evidence regarding Paragraph thirty-seven or the events described in BOP Agency No. 2016-0920, an internal discrimination dispute involving Plaintiff. (Id.; see also doc. 65-1 (BOP case file).) On July 19, 2018, Defendant filed his Motion for Summary Judgment. (Doc. 60.)

         II. Factual Background

         The material facts in this case are not in dispute. (See Doc. 63 (“Plaintiff does not oppose Defendant's recitation of the facts in its Brief in Support of Motion for Summary Judgment.”).) Plaintiff Connie L. Windham is a BOP employee who has worked her entire tenure at FCI Jesup. (Doc. 60-21, p. 1.) Plaintiff began her career as a correctional officer but later took a position in UNICOR, a government corporation with two factories at FCI Jesup that primarily produce garments. (Id.) The larger of the two factories, the FCI Factory, produces t-shirts, while the smaller factory, the FSL Factory, produces specialty items with embroidery or screen prints. (Id. at p. 2.) These factories are located approximately 300 to 400 yards from each other, and according to Plaintiff, UNICOR employees do not generally view one factory as better than the other. (Id.; see also doc. 60-1, p. 20 (Plaintiff's Dep.).)

         Plaintiff's first UNICOR position was as a customer service representative, which required her to take orders and ensure timely delivery. (Doc. 60-21, p. 2.) She began her customer service position working at the FCI Factory but later worked out of the FSL Factory. (Id.) Plaintiff made this move between factories based on an oral instruction, without any documenting paperwork. (Id.; doc. 60-1, p. 17.) In January 2013, Plaintiff became a UNICOR quality assurance specialist, initially located at the FCI Factory. (Doc. 60-21, p. 2.) When she applied for this position, it did not matter to her whether she worked out of the FCI or FSL Factory.[2] (Id.) As a quality assurance specialist, Plaintiff ensured that manufactured garments met specifications and tolerance levels required by the customer. (Id. at p. 3.)

         Although each factory had its own manager, Plaintiff reported to Robert Cousson, the quality assurance manager, rather than the factory manager. (Id.) Moreover, the factory manager did not participate in performance reviews of Plaintiff or make decisions regarding her pay. (Id.) In November 2013, Paul Wells served as the FCI Factory manager where Plaintiff worked as a quality assurance specialist. (Id.) Mr. Wells was not Plaintiff's supervisor. (Id.) At that time, Plaintiff and Mr. Wells were friends, and prior to being factory manager, he helped Plaintiff learn the duties of her new quality assurance job. (Id.)

         That same month, an Equal Employment Opportunity (“EEO”) investigator contacted Plaintiff regarding a discrimination complaint filed by Mr. Ricky Pasley, a UNICOR fabric worker who reported directly to FCI Factory Manager Wells. (Id. at pp. 3-4.) Jackie Butcher, a human resources manager, and later Mr. Wells, told Plaintiff that she should try and speak with the investigator. (Id.) On November 14, 2013, Plaintiff contacted the investigator by phone and first learned that the compliant pertained to Mr. Pasley. (Id. at p. 4.) Mr. Wells did not inform Plaintiff who the subject of the complaint was. (Id.) After speaking with the EEO investigator, Plaintiff never revealed the substance of her testimony to anyone at UNICOR. (Id.)

         On November 18, 2013, Plaintiff and Mr. Wells were involved in two disputes. (Id. at pp. 4-5.) First, Plaintiff protested Mr. Wells' decision to change the overtime schedule and allow another worker to earn overtime instead of her; as a result of this change Plaintiff had to work overtime the next day.[3] (Id. at p. 4.) Second, Mr. Wells separately confronted Plaintiff about a conversation Plaintiff had with Captain Carrino where she expressed concern that UNICOR employees were not performing security pat-downs of all inmates who came in and out of UNICOR factories. (Id. at p. 5.) According to Plaintiff, Mr. Wells questioned her in an intimidating manner and told her “what happens in UNICOR stays in UNICOR.” (Id.)

         On November 19, 2013, Jodi Thomason, the president of the union to which Plaintiff belongs, sent Mr. Wells an email contending that he had “verbally reprimanded [Plaintiff] to the point of her becoming physically and visibly shaken.” (Id. (citation omitted).) Ms. Thomason alleged that Mr. Wells had retaliated against Plaintiff and announced the union would be pursuing a grievance. (Id.) After receiving this email, Mr. Wells called Plaintiff and asked that she explain to the Warden that Ms. Thomason's allegations were untrue; Plaintiff interpreted this call as an attempt to “coerce” her. (Id.) Plaintiff then authored a memo dated November 20, 2013, to FCI Jesup's Warden, Suzanne Hastings, outlining her recent interactions with Mr. Wells. (Id.; see also doc. 60-6 (Plaintiff's Mem.).) In response, Warden Hastings assembled a Threat Assessment Team to interview the relevant witnesses and make appropriate security recommendations.[4](Doc. 60-21, p. 6.) The Team determined that Mr. Wells did not pose an imminent physical danger to Plaintiff, but they nonetheless recommended that he be reassigned to work in the UNICOR warehouse until further notice. (Id.) On November 21, 2013, Warden Hastings reassigned Mr. Wells, and he did not return to work at either Factory. (Id.)

         A. Plaintiff's Transfers

         Mr. Wells' relocation to the warehouse created an open position at the FCI Factory, as it left the factory without a manager. (Id.) Marvin Tucker, the Associate Warden who oversaw UNICOR and was Plaintiff's second-level supervisor, determined that Plaintiff's direct supervisor, Quality Assurance Manager Cousson, should be the new manager at the FCI Factory. (Id.) Mr. Cousson had previously served as the FCI Factory manager, and Associate Warden Tucker valued this experience, thinking it would be key in the factory maintaining necessary certifications.[5] (Id. at pp. 6-7.) At the time of relocation, Mr. Cousson was also as the quality assurance specialist at the FSL Factory, and his move to the FCI Factory created an opening at his previous position. (Id. at p. 7.) On December 31, 2013, Associate Warden Tucker notified Plaintiff that she would move from the FCI Factory to the FSL Factory on January 8, 2014, to coincide with Mr. Cousson's move; Mr. Tucker was unaware of Plaintiff's November 14, 2013 phone interview with the EEO investigator. (Id.) Following this move, Plaintiff emailed her supervisor to tell them that she “would like to stay at the FSL [Factory].” (Doc. 60-10.)

         Shortly thereafter, though, Warden Hastings asked Plaintiff to return to the FCI Factory on January 13, 2014. (Doc. 60-21, p. 7.) Warden Hastings did not disclose her rationale for transferring Plaintiff a second time, but she, like Associate Warden Tucker, was unaware that Plaintiff had provided a statement to an EEO investigator regarding Mr. Pasley's discrimination complaint. (Id.) Moreover, Plaintiff does not believe the January 13, 2014 transfer was retaliatory in manner. (Id.) Plaintiff's return to the FCI Factory on January 13 once again left the FSL Factory without someone to perform quality assurance functions. (Id.) This transfer back to the FCI Factory was short lived, however, because on January 21, 2014, Plaintiff was once again transferred to the FSL Factory. (Id. at p. 8.) Plaintiff is unaware of the reasoning behind her January 21 transfer back to the FSL Factory or who made the decision, and no paperwork is associated with any of her January 2014 transfers between the two UNICOR factories at FCI Jesup. (Id.) However, Plaintiff acknowledges that the January 13, 2014 transfer back to the FCI Factory left the FSL Factory without a quality assurance staff member. (Doc. 60-1, p. 69.) Although Defendant transferred Plaintiff between UNICOR factories three times in January, she never experienced a change in pay, job responsibilities, or prestige. (Doc. 9-2, p. 3.) On March 3, 2014, Plaintiff first contacted the EEO office to file a complaint about these transfers. (Doc. 60-14.)

         B. Derogatory Comments Made About Plaintiff

         In addition to Mr. Wells' intimidating questioning and the January transfers, both of which occurred relatively soon after Plaintiff's November 14, 2013 phone interview with the EEO investigators, Plaintiff also became the subject of several derogatory comments, per her November 20, 2013 memorandum to Warden Hastings. (Doc. 60-21, p. 8.) According to Plaintiff's memo, a co-worker, Lisa Ognilla, relayed to her that the “good ole boy's club” called her “The Gestapo.” (Id.; see also doc. 60-6 (Plaintiff's Mem.).) Ms. Ognilla did not reveal who called Plaintiff “The Gestapo, ” and it was reportedly only used once according to Plaintiff.[6] (Doc. 60-21, p. 8.) In her memo, Plaintiff also stated that Ms. Ognilla reported a co-worker had referred to Plaintiff as an “unhappy camper, ” but Ms. Ognilla denied ever hearing anyone refer to Plaintiff as an “unhappy camper.” (Id.) In either event, no one ever used the term “unhappy camper” in Plaintiff's presence. (Id.) Responding to Plaintiff's memo, Warden Hastings directed Associate Warden Tucker to hold a meeting with all UNICOR staff, where he emphasized professionalism and demanded that all name-calling cease.[7] (Id. at pp. 8-9.)

         The name-calling brought to light by Ms. Ognilla was not the only negative thing in regard to Plaintiff. Additionally, FSL Factory manager Wanda Moody made two derogatory remarks toward Plaintiff. First, on March 24, 2014, Ms. Moody commented that Plaintiff was “not worried about OT on her check; she is just happy to make her 40-hour work week, 80-hour pay period.” (Id. at p. 9.) Plaintiff took this remark as disparagement on the number of absences she had accrued at that time. (Id.) Second, on April 1, 2014, Ms. Moody entered Plaintiff's office and handed her a whistle, stating “a whistle for a whistleblower, ” in the presence of inmates and Mr. Pasley. (Id. at p. 10; doc. 60-1, pp. 87-88.) Ms. Moody then said, “I guess that sounded funny . . . I didn't mean it.” (Id.) Immediately following this incident, Warden Hastings issued Ms. Moody a cease and desist letter regarding her whistleblower stunt. (Id.) However, as far as Plaintiff knew, Ms. Moody was not aware that Plaintiff had given a statement to the EEO investigator when she made her comments to Plaintiff. (Id. at p. 9.)

         After being subjected to the aforementioned events, Plaintiff filed a claim for Workers' Compensation under the Federal Employees' Compensation Act (“FECA”) based on the anxiety and mental anguish caused by these events. (See id. at p. 10.) Plaintiff also updated her March 2014 EEO complaint with information regarding Ms. Moody's actions and derogatory comments. (Doc. 60-14.) In her April 2015 application for FECA benefits, Plaintiff stated that she had been diagnosed with “adjustment disorder” brought on by working in a “hostile work environment” at UNICOR. (Doc. 60-19.) On September 21, 2015, the Office of Workers' Compensation Programs approved Plaintiff's claim for benefits. (Doc. 60-21, p. 10.) Approximately one year later, on September 14, 2016, Plaintiff filed the present Title VII retaliation action. (Doc. 1.)


         Summary judgment “shall” be granted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Inv'r Grp. v., 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The moving party bears the burden of establishing that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party must identify the portions of the record which establish that there are no “genuine dispute[s] as to any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the burden of proof at trial, the moving party may discharge his burden by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257.

         In determining whether a summary judgment motion should be granted, a court must view the record and all reasonable inferences that can be drawn from the record in a light most favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 630 F.3d 1346, 1353 (11th Cir. 2011) (citing Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 616 (11th Cir. 2007)). However, “facts must be viewed in the light most favorable to the non-moving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. (citation and emphasis omitted).


         Plaintiff Windham claims that Defendant subjected her to unlawful retaliation at FCI Jesup in violation of Title VII. (Doc. 1.) Title VII makes it illegal for “an employer to discriminate against any of his employees . . . because [she] has opposed any practice made an unlawful employment practice by this subchapter, or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a); King v. Sec'y, United States Dep't of the Army, 652 Fed.Appx. 845, 847 (11th Cir. 2016) (per curiam) (noting that Title VII's prohibition on retaliation applies to federal employees). Plaintiff's retaliatory transfer and hostile work environment claims arise under the second clause of this section, known as the “participation clause.” EEOC v. Total Sys. Servs., 221 F.3d 1171, 1174 (11th Cir. 2000). The participation clause “protects proceedings and activities which occur in conjunction with or after the filing of a formal charge with the EEOC; it does not include participating in an employer's internal, in-house investigation, conducted apart from a formal charge with the EEOC.” Id. (citation omitted).

         Plaintiff alleges that, after she participated in an EEO investigation, Defendant retaliated against her by transferring her between different UNICOR factories at FCI Jesup and by subjecting her to a hostile work environment. (Doc. 63; see doc. 1.) Plaintiff assets that “[i]mmediately after [she] testified” in the investigation on November 14, 2013, “Defendant engaged in a pattern of retaliatory acts and comments which would dissuade a reasonable employee from testifying.” (Doc. 63, p. 11.) Plaintiff argues that the “totality of the circumstances” show Defendant retaliated against her and that, at the very least, “[g]enuine issues of material fact exist as to why Defendant took these against Plaintiff.” (Id. at pp. 10, 11.) Further, Plaintiff avers that a dispute remains as to whether Defendant's actions “were sufficient to dissuade a reasonable employee from testifying in support of a co-worker in his race discrimination case.” (Id. at p. 14.)

         Defendant moves for summary judgment as to Plaintiff's claims of retaliatory transfer and retaliatory hostile work environment. (Doc. 60.) Defendant argues that Plaintiff's claims regarding the transfers on January 8 and 13, 2014, are barred by Plaintiff's failure to timely exhaust those claims. (Id. at pp. 10-11.) As to her January 21, 2014 transfer, Defendant contends Plaintiff has not adduced the necessary evidence to support a prima facie case of retaliatory transfer and that Plaintiff was transferred for legitimate business reasons, not retaliation. (Id. at pp. 12-19.) Similarly, Defendant argues that Plaintiff fails to produce evidence of a retaliatory hostile work environment and that the BOP took prompt remedial action, thereby precluding liability. (Id. at pp. 20-26.) In addition, Defendant asserts that Plaintiff may not obtain compensatory damages stemming from her adjustment disorder diagnosis, because she has already been compensated for this harm thorough her successful FECA claim. (Id. at pp. 26-30.)

         The Court address these arguments in turn. In reviewing the undisputed facts in this case and the evidence submitted by Plaintiff on each of her retaliation claims, the Court finds that Defendant's Motion for Summary Judgment is due to be granted for the reasons explained below.

         I. Plaintiff's New & Unsupported Allegations Presented in her Opposition Brief

         The Court begins by discussing the new factual allegations and non-sequitur arguments raised by Plaintiff in her Opposition Brief. Rather than directly engaging with many of Defendant's arguments, Plaintiff's Brief in Opposition mostly passes by Defendant's Motion for Summary Judgment much like two ships passing in the night. (Compare Doc. 60, with Doc. 63.) In her Brief, Plaintiff fails to respond to Defendant's exhaustion argument, as well as others, and fails to muster evidence on issues where Defendant has contended there is insufficient evidence to survive summary judgment. (See Docs. 60, 63; see also doc. 65, pp. 18-19 n.3 (outlining several arguments Plaintiff failed to address).) Instead, as Defendant accurately illustrates, Plaintiff relies in-part on hearsay evidence, raises factual contentions that exceed the scope of her Complaint and violate the parties' Stipulation, points to evidence that does not support her assertions, and attempts to change the relevant protected activity undergirding her retaliation claims from the November 2013 statement to other events. (See Doc. 65, pp. 1-8.) Plaintiff did not file a surreply to rebut these charges made by Defendant. In the manner and for the reasons explained below, the Court declines to consider Plaintiff's extraneous and unsupported factual allegations and the arguments made thereunder

         A. ...

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