United States District Court, W.D. Missouri, Western Division
SEAN E. EDWARDS, Plaintiff,
LORETTA LYNCH,  ATTORNEY GENERAL, UNITED STATES DEPARTMENT OF JUSTICE, Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND JUDGMENT IN FAVOR OF DEFENDANT
ORTRIE D. SMITH, Senior District Judge.
Plaintiff, an FBI agent, filed a two-count Complaint alleging that he was subjected to discrimination based on his gender and that he was subjected to unlawful retaliation. There is a dispute as to whether Plaintiff has also asserted a claim for hostile work environment: neither of the two counts explicitly asserts a claim for hostile work environment, but some of the factual allegations assert that a hostile work environment existed. E.g., Complaint, ¶ 18, 22. The Court will discuss below whether Plaintiff has properly advanced a theory predicated on the existence of a hostile work environment. For present purposes the important point is that all of Plaintiff's claims arise under Title VII of the Civil Rights Act.
A bench trial was held the week of May 4, 2015. As explained more fully below, the Court finds in Defendant's favor.
I. FACTUAL FINDINGS
The Court finds the following facts have been proved by the greater weight of the evidence. In setting forth its findings, the Court will not parse out each piece of evidence or testimony on a point and will only occasionally indicate the evidentiary support for the facts set forth. It should be understood that any conflict in the evidence has been resolved in the manner described below.
A. General Background
The Court begins with a brief description of the structure of the FBI's Kansas City field office. This subsection also describes facts that form a backdrop to the specific events addressed in the ensuing subsections.
During the relevant time period, the person in charge of the Kansas City division was Special Agent in Charge ("SAC") Brian Truchon. Reporting to SAC Truchon were two or three Assistant Special Agents in Charge ("ASACs"). At the outset of the relevant time period there were two: ASAC Daniel Jones and ASAC John Cataldi. ASAC Eric Jackson joined ASACs Jones and Cataldi in May 2011. The office was divided into approximately twenty different squads, and the manner in which the ASACs divided supervisory responsibility varied over time. Each squad was supervised by a Supervisory Special Agent ("SSA"), who reported to the ASACs.
Plaintiff joined the FBI in 1999, and from 2003 until the Fall of 2007 he was assigned to the Albuquerque, New Mexico office. While there he was trained as a pilot and occasionally flew surveillance as part of his duties. In the Fall of 2007 he transferred from Albuquerque to Kansas City because Kansas City's surveillance squad was in need of pilots. The surveillance squad - also referred to as "Squad Six" - consisted of two units or groups. The names of these groups changed during the events in question, and for the sake of convenience the Court will utilize their new/current names. One unit was the Mobile Surveillance Team - Armed ("MST-A") and the other was the Mobile Surveillance Team ("MST"). The units consisted of ground personnel, who were assigned to either MST or MST-A, and pilots, who at various times flew in support of either MST, MST-A, or both. On occasion, the pilots were also assigned duties on the ground. However, in 2010, Plaintiff and another pilot (Keith Whitnah) were assigned to flying full-time; other agents (Lonnie Cox, Bruce Contess, and Alex Menzel) flew part-time.
Julie Bulman was an agent who transferred to Kansas City in 2009 and was assigned to MST-A. In February or March 2010, Plaintiff, Plaintiff's wife (Tonda Edwards),  and Bulman began a romantic relationship with each other. The relationship ended in July 2010. While one usually expects a certain amount of emotion at the conclusion of a romantic relationship, this breakup engendered a rather high degree of anger and resentment. The Court finds that after the breakup Plaintiff began disparaging Bulman to other agents, including other agents on Squad Six. Bulman may have also disparaged Plaintiff to other agents, including other agents on Squad Six; the evidence is not clear as to whether she did so between July and October 2010, but that fact is not terribly important.
Text messages reveal that Plaintiff and Tonda also continued discussing Bulman in disparaging terms, and at times the pair appeared to revel in Bulman's discomfort and unhappiness. This led to the events of October 2010: Bulman's ex-husband (Alex Meriano, himself an FBI agent) invited Plaintiff's and Tonda's son to a birthday party for Bulman's and Meriano's daughter to be held near the end of October. Plaintiff and Tonda discussed plans to attend in the hopes that this would cause Bulman discomfort. E.g., Defendant's Exhibit 9, pages 77-78. Whether their attendance had the desired effect is unclear and unimportant: the fact is that Plaintiff and Tonda attended the party and while there Tonda became upset or irritated with Bulman and thereafter resolved to harm her in some way. Tonda knew, from prior discussions with Bulman, that Bulman used her FBI car to take her children to school, which Tonda knew was a violation of FBI regulations. Thus it was that Tonda staked out the front of Bulman's children's school and videotaped this transgression, and on or about October 29 she sent an anonymous complaint with the videotape to the FBI's Office of Professional Responsibility ("OPR") in Washington, D.C.
Plaintiff and Tonda insist that Tonda "acted alone" and without Plaintiff's prior knowledge. The Court is not entirely convinced of Plaintiff's ignorance, but it really does not matter whether Plaintiff knew what Tonda intended before she sent the OPR complaint. The Court will say this: Tonda's testimony notwithstanding, the Court does not believe - not for one moment - that Tonda acted out of altruism, out of a taxpayer's concern about improper activity by a government employee, out of a heartfelt belief about how a well-run organization should operate, or even out of some notion she was "doing the right thing." Tonda acted out of spite; out of personal animosity toward Bulman; out of a desire to cause harm and inconvenience to Bulman. The fact that Tonda was correct and that Bulman was violating FBI policy does not alter this conclusion.
When a complaint is received, the OPR has the option of (1) referring the matter to the local office for resolution or (2) handling the matter itself with varying levels of involvement by the local field office. In this case, the decision was made to handle the matter from Washington, and the process when such a decision is made is to notify the local field office with instructions to notify the agent of the OPR complaint. The local office also has some responsibility for gathering certain information and forwarding it to Washington. Thus, in early November 2010 notice of the OPR complaint was sent to SAC Truchon, who sent word down the chain of command to notify Bulman of the OPR complaint and of the fact that he needed to talk to her about it. SSA Moore advised Bulman of the OPR complaint and its contents: a letter accusing her of using her FBI car to take her children to school and videotapes of her doing so. Perhaps Bulman recalled that Tonda (as Tonda explained in her testimony) had previously counseled her against using her FBI car to take her children to school. Perhaps Bulman reacted to the ongoing emotions following the break-up and the recent incidents at her daughter's birthday party to simply assume Plaintiff's and Tonda's involvement. Regardless, Bulman made the correct connections and told SSA Moore that Plaintiff or Tonda or both were responsible for the OPR complaint. Bulman also admitted the violation, and in January 2011 OPR meted out a one day suspension as punishment.
Unsurprisingly, the OPR complaint intensified hostilities between Plaintiff and Bulman. Both Plaintiff and Bulman were instructed not to discuss the OPR complaint with fellow agents. Nonetheless, Bulman regularly complained to SSA Moore (who already knew about the OPR complaint) that Plaintiff was following, stalking, and bad-mouthing her to other agents. The latter complaint was certainly true. Plaintiff also regularly complained to SSA Moore about Bulman. The Court credits SSA Moore's testimony that both Bulman and Plaintiff complained to him about the other on a regular basis. The Court also finds that both of them had several discussions with ASAC Cataldi. While not necessarily divulging the OPR complaint's existence, Plaintiff and Bulman also expressed their negative feelings about each other to other members of Squad Six. The Court finds that the conflicts between Plaintiff and Bulman were noticeable to, and having a negative effect on, Squad Six, and at times squad members complained to SSA Moore. As SSA Moore described matters, it appeared the members of Squad Six were choosing sides. Other witnesses testified to these facts, and the Court finds the testimony of ASAC Cataldi, SSA Moore, and Special Agent Lonnie Cox (the Team Leader for MST-A) particularly credible on this point. These problems infected Squad Six from the time Bulman learned of the OPR complaint through at least the time of Plaintiff's transfer and were a frequent topic of discussion between SAC Moore and the ASACs and between the ASACs and SAC Truchon. For a time, SSA Moore tried to resolve these problems by having Plaintiff fly only with MST, which was an effort to separate Plaintiff from Bulman and the rest of MST-A. This required Plaintiff to fly more on weekends and nights than he had previously. However, at some point (possibly sometime in March 2011) Plaintiff was allowed to resume flying with MST-A. Plaintiff's gender played no part in SSA Moore's decision to assign Plaintiff to fly with MST.
B. The QSI
Meanwhile, in October 2010 the Kansas City office was told the number of Quality Step Increases ("QSIs") that could be awarded for the year. A QSI is a monetary performance award that moves a federal employee up the pay schedule to the next step earlier than the employee would otherwise move up the schedule. A limited number of QSIs are permitted to each field office each year, and the number permitted is established by FBI HQ in Washington. To determine who in Kansas City would receive a QSI, nominations were solicited from the SSAs. The total number of nominations would naturally exceed the number of QSIs permitted, so the nominations were then considered by the ASACs. The ASACs pared the SSAs' nominations to the number allotted, taking into account each nominee's performance and the need to balance the QSIs amongst the various squads and between agents and non-agents. The ASACs forwarded their recommendations to SAC Truchon, who was responsible for making the final decision and ultimately submitting the names to Washington (where the individuals would be subjected to further review; for example, to determine if there were any outstanding OPR complaints that the local office might not be aware of).
SSA Moore nominated Plaintiff for a QSI in October 2010, and Plaintiff's name was eventually forwarded by the ASACs to SAC Truchon, but SAC Truchon did not approve Plaintiff for a QSI and did not forward Plaintiff's name to Washington. By the time Truchon was considering who to formally approve, he had already been involved in discussions with the ASACs about the difficulties on Squad Six. Based on his continued discussion with the ASACs, SAC Truchon believed Plaintiff bore some responsibility for the continued difficulties on Squad Six and thought it would be wrong to reward him with a QSI. Plaintiff's gender played no part in SAC Truchon's decision not to submit Plaintiff for a QSI.
C. The Principal Relief Supervisor Position
In December 2010, a position for principal relief supervisor for Squad Six was posted. The applicants were to be reviewed by the Career Board and a recommendation made to SAC Truchon. Plaintiff was the only applicant, and the position was recanvassed in mid-January 2011. Recanvassing routinely occurs when only one person applies for a posting in order to provide the Career Board with choices to compare, and this is why the position was reposted on this occasion. Plaintiff did not specifically respond to the recanvassing, but he did not have to: as the recanvassing was intended to elicit additional applicants, his application in response to the original posting carried over for consideration with any other applications submitted in response to the recanvassing. In mid-February 2011 the Career Board recommended to SAC Truchon that he select Plaintiff as the principal relief supervisor for Squad Six, and he did. Plaintiff's gender played no part in decision to repost the position.
After Plaintiff was selected for the principal relief supervisor position, SSA Moore (and possibly ASAC Cataldi) cautioned Plaintiff that he would have to treat Bulman fairly. Separately, Bulman expressed concerns that Plaintiff would have access to her personnel file. She was told this would not be the case. Bulman also shared her displeasure at Plaintiff's selection with other agents.
D. The Mediation
In February 2011, one of the ASACs suggested soliciting the services of a mediator to help resolve the conflicts between Plaintiff and Bulman. Details about the origination of this plan are not terribly important, but the evidence suggests ASAC Cataldi or ASAC Jones directed SSA Moore to try to persuade the two parties to agree to the effort. Plaintiff makes much of the fact that some of the communications refer to this as an "EEO mediation" even though nobody (including Plaintiff and Bulman) had filed an EEO complaint. Despite the phrasing, the Court finds this was not an EEO mediation; it was an "ordinary" mediation that was similar to mediation efforts the FBI used in other instances to resolve workplace differences. Faced with a situation in which two agents had allowed their personal lives to spill into and detrimentally affect the FBI's operations, the FBI hoped the mediation would allow the principals to clear the air and restore normalcy. Such an effort did not require an EEO complaint to be filed.
The mediation was not desired by either party. Bulman did not suggest it and did not want to attend. The evidence does not establish whether she would have attended because Plaintiff expressed that he would not attend. Without both participants there was no point in having mediation, so one was never held.
Plaintiff also makes much of the fact that SSA Moore wrote in an e-mail to Plaintiff that if he "opt[ed] out of the meeting we will proceed without you and your voice will not be heard." Joint Ex. 5. The Court does not know whether SSA Moore intended this as an attempt to cajole Plaintiff into participating or if it was an error on SSA Moore's part; the salient point remains that the mediation did not occur and nobody suffered any repercussions (other than the lost opportunity to resolve this mess) for failing to participate.
E. Bulman's Demand that OPR Complaints Be Filed
In February 2011, a meeting was held between Bulman, ASAC Cataldi, and EEO Coordinator Melika Matthews. At the meeting, Bulman reiterated her unhappiness about the OPR complaint from October 2010 and further complained that she was afraid of Plaintiff because of their break-up and because he had violent tendencies. This was one of the meetings (if not the only meeting) in which she expressed concern about Plaintiff's selection as Principal Relief Supervisor. Bulman ...