McCullough v. Sessions

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

OSCAR MCCULLOUGH,
Plal`ntiff,

V' Civil Action No. 14-296 (RDM)

MATTHEW G. WHITAKER, Acting
Attorney General of the United States,

Defendant.

MEMORANDUM OPINION

To borrow from Tolstoy, all happy workplaces are alike, but each unhappy workplace is
unhappy in its own way. This case is about one very unhappy workplace. Plaintiff Oscar
McCullough claims that from 2009 to 2011, he had an extramarital affair with a coworker at the
Department of Justice Offlce of the Inspector General (“OIG”). When the affair supposedly
ended, turmoil began. That coworker, Brandie Miller, and several of McCullough’s other
colleagues complained to their supervisors that McCullough spread false and malicious rumors
about them. McCullough denied these allegations and asserted that it was the other way around:
Miller and the others were harassing him. The Department of J ustice initiated a formal
investigation, which unfolded over four months. The investigation determined that
McCulloulgh’s complaints against Miller and the others were unfounded but that the complaints
against McCullough had merit. The investigation concluded in particular that McCullough had
made inappropriate comments of a sexual nature, that he had deliberately hindered coworkers
from completing their assignments, and that he had made inappropriate and potentially

discriminatory comments about a pregnantjob applicant. OlG suspended McCullough for seven

days without pay. According to OIG, the suspension was based on McCullough’s misconduct.
McCullough sees it differently. He believes that he was suspended based on his sex and also in
retaliation for complaining about sex discrimination

McCullough, accordingly, filed this action under Title VII ofthe Civil Rights Act of
1964, asserting claims of sex discrimination and retaliation against the Department. Dkt. 3. The
matter is now before the Court on the Department’s motion for summaryjudgment, Dkt. 33. For
the reasons that follow, the Court will GRANT the Department’s motion.

I. BACKGROUND

The following facts are undisputed except where noted.
A. Factual Background

1. Allegations ofMiscona'uct

From March 2008 to February 2016, Oscar McCullough served as a contracting officer in
the Management and Planning (“M&P”') Division ofthe Offlce of the Inspector General at the
Department of Justice. Dkt. 33-2 at l (Def.’s SUMF 11 l); Dkt. 33-22 at 4 (McCullough Aff. 1111
8~12). His direct supervisor was Michael Barbour, the Director of the Offlce of Administrative
Services, and his second-level supervisor was Linda Ruder, the Deputy Assistant Inspector
General. Dkt. 33-22 at 5 (McCullough Aff. 1111 14_19). According to McCullough, he had an
extramarital affair with an OIG coworker, Brandie Miller. Dkt. 33-2 at 3 (Def.’s SUMF
ll lo); Dkt. 33-22 er 17 (Meculleegh Aff. ll 77). After Mecelleugh allegedly ended their
romantic relationship in July 201 l, their professional relationship soured, and several other
employees became embroiled in the ensuing conflict. Dkt. 33-2 at 6 (Def.’s SUMF 1[ 21); Dkt.

33-22 at 17 (McCullough Aff.1l 77).

Beginning in August and continuing through lNovember 2011, Miller and other
colleagues complained to management about McCullough’s behavior. The complaints alleged
the following: (1) that McCullough had spread spurious and inappropriate rumors about four
colleagues: Miller, Allen Anthony, Jacqueline Wilson-Gooch, and Tiffany Tilghman, id. at 2
(Def.’s SUMF 11 7); .(2) that McCullough had intentionally impeded Miller-’s and Anthony’s
ability to carry out their professional responsibilities, id. at 3'(Def.’s SUMF 11 8); and (3) that
McCullough had made inappropriate comments about a pregnantjob applicant, id. (Def.’s
SUMF 11 9).

The initial set of complaints was lodged by Miller and Miller’s friend, Human Resources
Specialist Kimberly Broden, and asserted that McCullough was spreading false rumors about
Miller to their colleagues. See id. at 3-4 (Def.’s SUMF 1111 l 1-12). These complaints prompted
Cindy Lowell, OIG’s Human Resources Director, to raise the rumor issue with McCullough in
September 2011. Ia'. at 4 (Def.’s SUMF 11 13). McCullough denied spreading the rumors, id.
(Def.’s SUMF 11 13), and asserted that he suspected Miller, Broden, and Financial Management
Analyst Tiffany Tilghman of stealing personal items from his office, l`d. at 5 (Def.’s SUMF 11
16); Dkt. 33-22 at 17 (McCullough Aff. 11 64). Although McCullough was repeatedly advised to
report the thefts and to seek an investigation, he declined to do so multiple times. Dkt. 33-2 at 5
(Def.’s SUMF 11 17); see id. at 6 (Def.’s SUMF 1111 20-21); id. at 8 (Def.’s SUMF 11 28). Miller,
Broden, and Tilghman, for their part, denied having any knowledge of the thefts. Ia’.'at 5 (Def.’s
SUMF 11 17); l'd. at 17 (Def.’s SUMF 11 65).

Later in September, McCullough notified Lowell for the flrst time that he and Miller had
engaged in a romantic relationship, that he had ended the affair, and that Miller and Broden were

angry with him. Id. at 3-4 (Def.’s SUMF 11 10). McCullough also forwarded to Lowell an email

from Broden and a voicemail from Miller, both of which expressed anger toward McCullough
for his treatment of Miller. Ia'. at 6 (Def.’s SUMF 11 22). According to Lowell, McCullough
reported that the situation had calmed down'and that he did not want her to take any action. Id.
at 6-7 (Def.’s SUMF 11 23).

Meanwhile, the complaints regarding McCullough’s behavior continued to mount. Allen
Anthony, a new Support Services Specialist at OIG, reported to management that McCullough
had started a false rumor about him. ld. at 7 (Def.’s SUMF 11 24). According to Anthony,
McCullough told their colleagues that Anthony and Miller were involved in a sexual
relationship. Id. (Def.’s SUMF 11 24).

Anthony’s complaint spurred Lowell to bring up the rumor issue with Ruder and Gregory
Peters, the M&P Assistant Inspector General. ld. (Def.’s SUMF 11 25). Peters and Ruder agreed
that management needed to warn the entire office that the rampant rumors were unacceptable
Id. (Def.’s SUMF 11 25). Accordingly, at an all-hands meeting on October 5, Peters announced a
new policy titled “M&P Zero Tolerance Policy on Office Gossip and Rumors,” which barred
employees from rumor mongering. Id. (Def.’s SUMF 11 26); see Dkt. 33-1 at 7 (“At this point,

. . . OIG management issued a ‘Zero Tolerance Policy[’] . . . .”); Dkt. 33-26 (Zero Tolerance
policy). Under that policy, spreading gossip could result in discipline. Dkt. 33-2 at 7_8 (Def.’s
SUMF 1111 26-27); Dkt. 38-1 at 4 (Pl.’s SDMF 1111 26-27).

In November, a few weeks after Peters’s intervention, Personnel Security Specialist
Jackie Wilson-Gooch reported a new rumor to Barbour and Lowell. Dkt. 33-2 at 8 (Def.’s
SUMF 11 29). According to Wilson-Gooch, she had heard that McCullough falsely told a
coworker that he had stayed overnight at Wilson-Gooch’s house. Id. (Def.’s SUMF 11»29).

McCullough denied that he was the source ofthis rumor. Dkt. 38-1 at 5 (Plt.’s SDMF 11 29).

In 201 1, McCullough told Lowell that he felt he was being harassed. Dkt. 33-2 at 8
(Def.’s SUMF 11 31); Dkt. 38-1 at 5 (Pl.’s SDMF 11 31). Although McCullough later clarified that
he was referring to Tilghman, Lowell believed he was talking about'Miller and Broden. Dkt. 3'3-
2 at 8 (Def.’s SUMF 11 31 & n.4); Dkt. 33-16 at 8 (OGC Report at 7); Dkt. 33-19 at 7-9. Lowell,
accordingly, met with the two women. Dkt. 33-2 at 9 (Def.’s SUMl~` 11 32). They denied having
any new conflicts with McCullough or spreading any rumors, and neither one wished to pursue
their own complaints further. ld. (Def.’s SUMF 11 32). McCullough, however, asked Lowell to
“pursue an investigation of the alleged harassment and false rumors about him” and of the thefts.
Dkt. 33-16 at 8 (OGC Report at 7).

2. Internal lnvestl`gatl`on and F indings

OIG’s Office of General Counsel (“OGC”) conducted the investigation, which
encompassed “McCullough’s complaints” and “several complaints about McCullough’s
conduct.” Dkt. 33-16 at 2 (OGC Report at 1). OGC interviewed nine employees: McCullough,
Miller, Broden, Anthony, Wilson-Gooch, Tilghman, Barbour, and Lowell, as well as M&P
Student-Office Automation Clerk Cedric Hopkins. ld. at 3 (OGC Report at 2). The investigation
culminated in a comprehensive 19-page report issued on March 23, 2012 by OIG’s General
Counsel, William Blier. See id. at 2 (OGC Report at 1).

OGC’s investigation revealed “a troubling lack of maturity and professionalism” in
M&P, “primarily by McCullough, but by other M&P staff members as well.” 'Id. at 2 (OGC
Report at 1). The report reached three conclusions. OGC concluded, first, that “there was
insufficient evidence” that Miller or Broden stole from McCullough or that Miller or her friends
had harassed him. Ia'. at 3 (OGC Report at 2). Second, OGC was unable to substantiate the

rumor allegations against McCullough:

While there was evidence to support Miller’s and Tilghman’s allegations that
McCullough spread false rumors about Miller engaging in Sexual relationships with
numerous . . . employees, including McCullough’s alleged admissions of such
conduct to at least two M&P employees, we could not conclude by a preponderance
of evidence that McCullough engaged in this serious misconduct.

Id. (OGC Report at 2). OGC, however, finally concluded that McCullough had “disrupted the
M&P work environment by initiating inappropriate sexually-oriented discussions in the n
workplace with several colleagues” and “by refusing to cooperate with colleagues on work
assignments.” Id. (OGC Report at 2). In addition, the investigation revealed that McCullough
“repeatedly complained” to coworkers “about the OIG hiring of a pregnant female.” la'. at 19
(OGC Report at 18).

3. Suspensl`on Decl`sion

Two months later, on May 23, 2012, Ruder issued an official notice of proposed
suspension to McCullough, See Dkt. 34-2 (Ruder Memo). Ruder proposed suspending
McCullough for seven business days Without pay “based on [his] conduct in: (1) initiating
inappropriate sexually oriented discussions in the workplace with several colleagues; (2)
intentionally obstructing [his] colleagues’ work; and (3) making other inappropriate, potentially
discriminatory statements in the workplace.” Ia’. at 2 (Ruder Memo at 1).

McCullough protested the proposed suspension, see id. at 15 (Ruder Memo at 14); Dkt.
34-1 at 2, but on July 25, 2012, Peters formally decided that McCullough would be suspended
for a period of seven.business days, Dkt. 34-3 at 2 (Peters Memo _at 1). Peters based his decision
on the three grounds specified in Ruder’s notice. Id. at 2 (Peters Memo at 1). McCullough
served his seven-day suspension between August 22 and August 30, 2012. Dkt. 3 at 7 (Compl.

1111 60, 62).

4. Administrative EEO Proceedl`ngs

On December 13, 2011, McCullough contacted a Department of Justice EEO counselor.
See Dkt. 8-9 at 2-3. According to' a letter that the EEO office sent, McCullough’s original
complaint was limited to an allegation that several of his co-workers had “subjected [him] to
severe and pervasive harassment”'that included “threats of physical violence and intimidating
behavior,” the “theft of personal items,” and “harassing and threatening phone calls, e-mails, and
voice mails.” Id. at 2. In early January 2012, McCullough met with an investigator who was
working on the OGC investigation. Dkt. 3 at 5 (Compl. 11 42); Dkt. 33-16 at 8 (OGC Report at
7). McCullough “withdrew” from the EEO process shortly thereafter, apparently on the basis of
an alleged statement by the investigator that OIG would tell McCullough’s colleagues to stop
harassing him. Dkt. 3 at 6 (Compl. 11 43); Dkt. 8-9 at 3. McCullough approached the EEO
counselor again on February 24, 2012, to complain about “severe and pervasive harassment.”
Dkt. 8-9 at 3. McCullough “amended and supplemented his EEO complaint several times,”
prompting “four separate EEO investigations,” the last of which concluded on April 27, 2014.
Dkt. 33-15 at 5 (Fallowfield Decl. 1111 19-21).
B. Procedural History

McCullough filed this suit under Title VII of the Civil Rights Act of 1964 on February
24, 2014. Dkt. 3 (Compl.). He originally asserted claims of gender discrimination and
retaliation arising out of several actions taken by the Department in 2011 and 2012, including his
seven-day suspension. See Dkt. 3 at 8-12 (Compl. 1111 70-93). The Department filed a combined
motion to dismiss and for summary judgment Dkt. 8. The Court granted the Department’s
motion “with respect to all of [McCullough’s] claims except” his claim based on his seven-day

suspension and his claim based on a “denial of advanced sick leave” in October 2012. Minute

Order (June 16, 2016). At a later hearing, the Court dismissed the latter claim by stipulation of
the parties. See Minute Entry (June 15, 2017). After a period of discovery, the Department then
renewed its motion for summaryjudgment, Dkt. 33. That'motion is now before the Court.

II. LEGAL STANDARD

The moving party is entitled to summaryjudgment under Federal Rule of Civil Procedure
56 if it “shows that there is no genuine dispute as to any material fact and [that it] is entitled to
judgment as a matter of law.‘” Fed. R. Civ. P. 56(a). The party seeking summary judgment
“bears the initial responsibility” of “identifying those portions” of the record that “demonstrate
the absence ofa genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
A fact is “material” if it could affect the substantive outcome of the litigation. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harrl`s,
550 U.S. 372, 380 (2007). The Court, moreover, must view the evidence in the light most
favorable to the nonmoving party and must draw all reasonable inferences in that party’s favor.
Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011).

If the moving party makes this showing, the burden then shifts to the nonmoving party to
demonstrate that sufficient evidence exists for a reasonable jury to find in the nonmoving party’s
favor with respect to the “element[s] essential to that party’s case, and on which that party will
bear the burden of proof at trial._” Celotex, 477 U.S. at 322. The nonmoving party’s oppositionl,
accordingly, must consist of more than unsupported allegations or denials and, instead, must be
supported by affidavits, declarations, or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. See` Fed. R. Civ. P. 56(0); Celotex, 477 U.S. at

324. That is, once the moving party carries its initial burden on summary judgment, the

nonmoving party must provide evidence that would permit a reasonablejury to find in its favor.
See Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). Ifthe nonmoving party’s
evidence is “merely colorable” or “not significantly probative,” the Court should grant summary
judgment. Ll`berty Lobby, 477 U.S. at 249-50.
j l III. ANALYSIS

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against
employees based on their sex, 42 U.S.C. § 2000e-2(a)(1), and from retaliating against employees
who complain of employment discrimination, 42 U.S.C. § 2000e-3(a). McCullough alleges that
the Department did both of those things when it suspended him for seven business days. To
prevail on a claim of sex discrimination, a plaintiff must show that this decision was taken
“because of [his] . . . Sex.” Brady v. Ojj‘l`ce ofSergeant al'Arms, 520 F.3d 490, 493 (D.C. Cir.
2008). To prevail on a retaliation claim, the plaintiff must demonstrate that he or she suffered an
adverse action after “having ‘made a charge, testified, assisted, or participated in any manner’ in
a Title VII ‘investigation, proceeding, or hearing.”’ Hernandez v. Pritzker, 741 F.3d 129, 133
(D.C. Cir. 2013) (quoting 42 U.S.C. § 2000e-3(a)). Absent direct evidence of either, a plaintiff
may prove a retaliation claim or a discrimination claim with circumstantial evidence under the
burden-shifting framework set forth i_n McDonnell Douglas Corp. v. Green. 411 U.S. 792
(1973); see also Johnson v. Interstate Mgmt. Co., 849 F.3d 1093, 1099 (D.C. Cir. 2017)
(reteliatienl elaim); DeJesus y. WP Ce.' LLC, 841 F.3d 527, 532 (D.C. cir. 2016) (disparete l
treatment claim). “Under this formula, an employee must first make out a prima facie case of
retaliation or discrimination.” Morrl's v. McCarthy, 825 F.3d 658, 668 (D.C. Cir. 2016) (citations
omitted). “The employer must then come forward with a legitimate, nondiscriminatory or non-

retaliatory reason for the challenged action.” Id.

Once the employer offers a legitimate, nondiscriminatory reason for the challenged act,
however, the Court “need not_and should not_decide whether the plaintiff actually made out a
prima facie case.” Brady, 520 F.3d at 494. Instead', the Court should decide only two questions:
“Has the employee produced sufficient evidence for a reasonable jury to find [1] that the
employer’s asserted . . . reason was not the actual reason and [2] that the employer intentionally
discriminated against the employee on the basis of” the protected characteristic or the protected
activity? Ia'. (citation‘omitted). In conducting this inquiry, the Court must assess “whether the
jury could infer discrimination from the combination of (1) the plaintiff”s prima facie case; (2)
any evidence the plaintiff presents to attack the employer’s proffered explanation . . . ; and (3)
any further evidence of discrimination” or retaliation. Nurrl`a'dz`n v. Bolden, 818 F.3d 751, 759
(D.C. Cir. 2016) (quoting Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012)).

A. The Department’s Proffered Nondiscriminatory Explanation

The Department contends that McCullough was suspended because, as the OGC
investigation concluded, he “made a number of inappropriate, offensive, and sexually explicit
comments,” “purposefully obstructed his colleagues’ work in retaliation for complaints that they
had made,” and made inappropriate comments about a pregnant job applicant, Dkt. 33-1 at 6;
see id. at 14. The Department documented the factual basis for each finding in its May 23, 2012
notice of proposed suspension. See Dkt. 34-2 (Ruder Memo).

17 irst, according to Ruder, McCullough “initiated inappropriate sexually-oriented
discussions in the workplace with several colleagues.” Id. at 10 (Ruder Memo at 9). In these
conversations, McCullough allegedly (1) described his “many extramarital affairs, both past and
present;” (2) recounted his “sexual relationship and marital problems with [his] wife,” (3)

attempted to coax others into “provid[ing] reciprocal details about [their] sexual relationship[s];”

10

(4) persisted in initiating such conversations even after colleagues asked him to stop; (5) engaged
in “inappropriate sexual banter”; and (6) described specific female coworkers as “easy.” Ia'. at
9-10 (Ruder Memo at 8-9). When asked about the allegations, McCullough purportedly
“declined to acknowledge or deny” any specific statements and, instead, “asked what would be
inappropriate about such conversations . . . between ‘two grown adults.”’ let at 10 (Ruder Memo
at 9). Ruder explained that she was “concerned” that McCullough “obviously lack[ed] . . .
sensitivity” about what conversations were appropriate_or not_-in the workplace. Id. at 10_11
(Ruder Memo at 9-10).

Second, Ruder explained that McCullough had interfered with Miller’s and Anthony’s
ability to complete projects due to personal disputes:

When Miller needed your assistance in purchasing items for the “Kid’s Day” 201 1
event, she sent . . . message[s] to you asking you to meet with her regarding the
assignment You did not respond to Miller’s messages, and at one point informed
her that you were “busy” with other matters . . . . Miller [then] asked fellow Human
Resources Specialist Kate Doss to contact you to complete the “Kid’s Day” task.
When Miller subsequently . . . ask[ed] for your assistance, you responded that you
had already handled the “Kid’s Day” issue with Doss, and would not meet with
Miller to discuss the matter. Following repeated requests from Doss, you
eventually performed the required work. When asked about this, you did not
dispute that you did not respond to Miller.

Id. at 12 (Ruder Memo at 11).

McCullough’s alleged “obstruction of Anthony’s work was more pervasive.” Ia'. (Ruder
Memo at 11). After Anthony learned that McCullough had told others that Anthony and Miller
had a sexual relationship, Anthony purportedly confronted McCullough. Id. at 12_13 (Ruder
Memo at 11-12); see Dkt. 33-22 at 17-18 (McCullough Aff. 11 77) (acknowledging that Anthony
and McCullough spoke about the rumors Anthony had heard). According to Ruder, McCullough
then “began to ‘punish’ Anthony” by delaying approval of documents that “required further
processing.” Dkt. 34-2 at 1,3 (Ruder Memo at 12). Th_ese forms were time-sensiti_ve and, if not

11

submitted in a timely fashion, could have resulted in OIG paying “bills for services it [was] no
longer using” or additional fees. Id. at 12 (Ruder Memo at 11). In addition, Anthony alleged
that McCullough “failed to discuss work issues with him.” Id. at 13 (Ruder Memo at 12). When
asked about this assertion, McCullough allegedly stated that he “did not have time” to answer
Anthony’s questions. la'. (Ruder Memo at 12). Ruder further concluded that, even after Barbour
met with both Anthony and McCullough, the latter “continued to be uncooperative.” Id. (Ruder
Memo at 12). As a result, “some final bills on contracts were not paid on time.” Id. (Ruder
Memo at 12). ln closing, Ruder noted that their relationship had “continued to deteriorate” and
that McCullough had “m aintained a consistently negative demeanor toward Anthony.” ld.
(Ruder Memo at 12).

Finally, according to Ruder, McCullough “repeatedly complained” about OIG hiring a
pregnant woman. ld. (Ruder Memo at 12). McCullough allegedly stated that the new hire would
not be able to complete her work and that her colleagues “would end up having to do her work
for her.” Id. (Ruder Memo at 12).

Ruder concluded that McCullough had “disrupt[ed]” the workplace, wasted his and
others’ time with “inappropriate conversations,” “created an uncomfortable work environment,”
and “impeded” Miller’s and Anthony’s “ability to perform their duties.” Id. (Ruder Memo at
12). She proposed that he be suspended for seven business days. Id. at 14 (Ruder Memo at 13).

The formal notice of suspension, issued by Peters on July 25, 2012, reiterated the bases
for McCullough’s suspension See Dkt. 34-3 (Peters Memo). After reviewing the OGC Report,
Ruder’s proposal, McCullough’s written response to the proposal, and other evidence, Peters
“fully adopt[ed]” the description of McCullough’s conduct and disciplinary recommendation set

forth in the notice of proposed suspension. Id. at 4 (Peters Memo at 3); see id. at 3 (Peters Memo

12

at 2). Peters also provided a detailed explanation of why, in his view, the seven-day suspension
was both appropriate and necessary:

First, . your conduct negatively impacted the productivity of several of your
colleagues. Second, you serve in a highly graded position and clearly should have
exhibited more maturity and better judgment in your interactions with colleagues.
Third, while you have no past disciplinary record with the OIG, I note that you have
a relatively short work history with this organization, and through this investigation
of this matter we have learned that you lack positive working relationships with a
number of your M&P colleagues. Fourth, your inappropriate conduct, and your
failure to recognize and acknowledge the seriousness of this conduct[,] clearly
impacts my confidence in your ability to perform your assigned duties. Fifth, after
reviewing similar disciplinary cases within the OIG, I find that the proposed 7-day
suspension is not excessive in any respect . . . Finally, despite your claim to the
contrary, OIG clearly put you on notice that your misconduct violated OIG rules
and regulations

Id. at 8 (Peters Memo at 7). Peters concluded that the suspension was “necessary to impress
upon [McCullough] the seriousness of [his] inappropriate conduct and to deter [him] from
similar offenses in the future.” Ia'. (Peters Memo at 7). He also noted that “each of the three
areas of misconduct” above “independently support[ed]” the suspension. Ia’. (Peters Memo at 7).
As the Department’s notice of proposed suspension and formal notice of suspension
reflect, the Department has offered legitimate, nondiscriminatory reasons for suspending
McCullough. The Court, accordingly, must determine whether McCullough has offered
sufficient evidence for a reasonablejury to find (1) that those reasons were pretextual and (2)
_ that he was suspended because of his sex or in retaliation for protected activity.v See Brady, 520
F.3d at 494. In doing so, the Court will consider the evidence with respect to any discriminatory
motive that might have influenced Ruder’s recommendation or Peters’s decision. Under the
“cat’s paw” theory of liability, an employer can be liable “when a direct supervisor harbors
discriminatory animus and influences the ultimate decision maker, even if that decision maker

lacks any discriminatory animus.” Noisette v. Lew, 21 1 F. Supp. 3d 73, 94 (D.D.C. 2016); see

13

also Sl'aub v. Proctor Hosp., 562 U.S. 411, 422 (201 1); Gri]j"l`n v. Wash. Conventl'on Ctr., 142
F.3d 1308, 1312 (D.C. Cir. 1998). Although Peters issued the formal notice of suspension,
Ruder drafted the proposed notice of suspension that formed the basis for Peters’s decision, and
so the Court will consider whether McCullough has identified evidence that would permit a

reasonable jury to find that either harbored a discriminatory motive that may have influenced the

ultimate suspension.l

B. Circumstantial Evidence of Discrimination or Retaliation
On summaryjudgment, the “relevant factual issue” is not whether the incidents described
by Ruder and Peters actually occurred; rather, the question is whether they “honestly and

reasonably believed” that the incidents occurred. Brady, 520 F.3d at 496; see also Johnson, 849

l lt is theoretically possible, of course, that while free of any discriminatory animus themselves,
supervisors may take adverse employment actions based on the discriminatory animus of a
party’s co-workers. In Sl‘aub v. Proctor Hospital, the Supreme Court “express[ed] no view as to
whether the employer would be liable if a co-worker, rather than a supervisor, committed a
discriminatory act that influenced the ultimate employment decision.” 562 U.S. at 422 n.4.
While two Courts of Appeals have extended “cat’s paw” liability to the negligent acts of
employers that give effect to the animus of low-level employees, see Vasquez v. Empress
Ambulance Serv., Inc., 835 F.3d 267, 273-74 (2d Cir. 2016); Velazquez-Perez v. Developers
Dl'versifled Realty Corp., 753 F.3d 265, 274 (lst Cir. 2014), the D.C. Circuit has not yet weighed
in on the question.

Because McCullough does not invoke this theory of liability, the Court need not go down this
path. Moreover, even if the Court were to consider this type of “cat’s paw”'liability for actions
taken based on the discriminatory motives of co-workers, McCullough would have to offer
evidence of three things to avoid summary judgment: (1) that his co-workers made statements to
Peters and Ruder about McCullough “for discriminatory reasons and with the intent to cause” his
suspension; (2) that his co-workers’ “discriminatory acts proximately cause[d]” his suspension;
and (3) the Department “act[ed] negligently by allowing the co-workers[’] acts to achieve their
desired effect though it [knew] (or reasonably should [have known]) of the discriminatory
motivation.” Velazquez-Perez, 753 F.3d at 274; accord Vasquez, 835 F.3d at 274. McCullough
has not argued that any of these factors are satisfied here, let alone offered evidence to enable a
reasonable jury to rule in his favor on them.

14

F.3d at 1 100 n.2 (“Even if Johnson had produced sufficient evidence to dispute whether the
infractions occurred, Johnson did not provide sufficient evidence to call into question whether
hotel management ‘honestly and reasonably believed’ that the infractions occurred.” (citing
Brady, 520 F.3d at 496)); Morrl`s v. McCarthy, 825 F.3d 658, 671 (D.C. Cir. 2016) (Plaintiff
“must raise a genuine dispute over the employer’s honest belief in its proffered explanation.”);
accord DeJesus, 841 F.3d at 533; Hal`rston v. Vance-Cooks, 773 F.3d 266, 273 (D.C. Cir.
2014); Harnpton v. Vl'lsack, 685 lF.3d 1096, 1101 n.8 (D.C. Cir. 2012); Val‘el v. All. ofAuto.
Mfrs., 627 F.3d 1245, 1248 (D.C. Cir. 2011). Thus, “an employer’s action may be justified by a
reasonable belief in the validity of the reason given even though that reason may turn out to be
false.” George v. Leavl`tt, 407 F.3d 405, 415 (D.C. Cir. 2005). As long as the Department’s
“stated belief about the underlying facts” is “reasonable in light of the evidence,” there
“ordinarily is no basis for permitting ajury to conclude that the employer is lying about” those
facts. Brady, 520 F.3d at 495 . Accordingly, McCullough’s blanket denials that the conduct
described in the suspension notices ever occurred, see Dkt. 38-2 at 11-12, standing alone, would
not provide a basis for a reasonable jury to find that McCullough was subjected to an adverse
employment action because of his sex or in retaliation for any protected activity. OIG
management had to decide who to believe; the fact that they did not credit all ochCullough’s
denials_in the face of conflicting statements offered by numerous other employees--would not
alone support a finding of discriminatory intent, even if McCullough’s version of events was, in
fact, accurate. See Dave v. Dl'st. of Columbl`a Melro. Police Dep’l, 905 F. Supp. 2d 1, 16 (D.D.C.

2012).

15

McCullough also contends that a reasonable jury could infer both pretext and
discriminatory motive for two reasons: First, he asserts, the decisionmaking process leading to
his suspension suffered from procedural defects. See Dkt. 38-2 at 16_18. Second, according to
McCullough, three coworkers_l\/Iiller, Broden, and Tilghman_made inappropriate comments
but were never punished.2 See l`d. at 18-20. Evidence that an employer failed “to follow
established procedures or criteria” or treated similarly situated female employees differently
may, in some circumstances, suffice to meet a plaintiffs burden of showing a genuine dispute
regarding pretext and discrimination. Brady, 520 F.3d at 495 n.3. For the reasons explained
below, however, McCullough has failed to offer evidence sufficient to show that the
Department’s explanations for his suspension were pretextual. ld. at 496.

1. Alleged Procedural Defects

McCullough contends that the suspension decision was based on the testimony of
witnesses who lacked credibility and was the product of an incomplete investigation. A plaintiff
can meet his burden of showing pretext by demonstrating that his employer’s “investigation . . .
[was] so unsystematic and incomplete that a factfinder could conclude that the employer sought,
not to discover the truth, but to cover up its own discrimination.” Burley v. Nat’l Passenger Ral'l
Corp., 801 F.3d 290, 296 (D.C. Cir. 2015). McCullough does not suggest that this was the case
here, nor could he: the Department’s investigation was extensive and its conclusions were

reasoned and thoroughly explicated.

2 In his opposition to summary judgment, McCullough also asserts that the Department
retaliated against him for pursuing the EEO grievance process by denying him advanced sick
leave. See Dkt. 38-2 at 20~21. All causes of action based on the denial of his advanced sick
leave, however, were dismissed based on the parties’ stipulation. See Minute Entry (June 15,
2017); see also Dkt. 30 at 5 (Hearing Tr. 5 .4-15) (identifying paragraphs “68, 71H and 83C” of
the complaint as the claims to be dropped).

16

Short of a grossly defective investigation, an employer’s “failure to follow established
procedures or criteria” may provide some evidence of pretext Brady, 520 F.3d at 495 n.3; see
also Farris v. Cll`nton, 602 F'. Supp. 2d 74, 87 (D.D.C. 2009) (noting that “[a] defendant’s failure
to follow established criteria or procedures can cast doubt on its asserted . . . reason” for the
employment decision). Stan.ding alone, however, such f‘procedural irregularities” are not
sufficient to establish pretext Fischbach v. D.C. Dep ’l of Corr., 86 F.3d 1 180, 1 183 (D.C. Cir.
1996); see also Johnson v'. Lehrnan, 679 F.2d 918, 922 (D.C. Cir. 1982). Instead, the procedural
defect must be accompanied by “some actual evidence that [the] defendant acted on a motivation
to discriminate.” Kelly v. LaHood, 840 F. Supp. 2d 293, 302 (D.D.C. 2012) (quoting Oll`ver-
Sl'lnon v. Nicholson, 384 F. Supp. 2d 298, 312 (D.D.C. 2005)). To evidence “the employer’s
discriminatory bias,” Johnson v. Dl`st. ofColurnbz'a, 99 F. Supp. 3d 100, 106 (D.D.C. 2015), the
defect must bear some “connection to the discrimination that the plaintiff is claiming,”
Washington v. Chao, 577 F. Supp. 2d 27, 46 (D.D.C. 2008).

Fl`rst, McCullough attacks Peters’s conclusion that McCullough started inappropriate
conversations of a sexual nature, which was based on the Statements of Broden, Tilghman, and
Anthony. According to McCullough, Anthony had “previously made false accusations” about
McCullough by reporting to Barbour that McCullough had started a rumor that Anthony and
Miller were having an affair. Dkt. 38-2 at 11; see Dkt. 33-22 at 17 (McCullough Aff. 11 77). To
be sure, the.OGC report did conclude that there was insufficient evidence that McCullough had
started the rumor. That conclusion, however, is a far cry from a finding that Anthony had
dissembled or was otherwise untrustworthy. To the contrary, the Department evidently credited
his assertions regarding the inappropriate conversations, along with the testimony of other

witnesses. Both Ruder and Peters found that Anthony was a credible witness because, as a new

17

employee, he had no prior relationship with McCullough or Miller and had every incentive to get
along with his new colleagues. See Dkt. 34-2 at 12 (Ruder Memo at 11) (Anthony “merely

' wanted to make a good impression” and “had every motivation to get along with” McCullough);
Dkt. 34-3 at 5 (Peters Memo at 4) (Anthony was “particularly believable” because he described
events that “occurred within a short period of his becoming an OIG employee, and by all
accounts, he has never been associated with either of’ the two other witnesses). To defeat
summary judgment, McCullough needs to do more than disagree with the Department’s
conclusions

The accusations made by the other witnesses, McCullough contends, “could [not] be
substantiated.” Dkt. 38-2 at 16. But, again, he offers no support for this contention, other than
his assertion that the sexually inappropriate conversations never occurred. An employer,
moreover, need not “substantiate” statements from witnesses obtained during the course of an
investigation As the D.C. Circuit has explained, employers must “resolve factual disagreements
all the time” to make personnel decisions Brady, 520 F.3d at 496. In doing so, they must
conduct “credibility assessments” of various witnesses Ia'.

This is precisely what the Department did here. Broden asserted that McCullough made
comments about his “sex life with [his] wife,” “past and present extramarital sexual affairs,”
“other women to whom [he was] attracted,” and “places where [he] had [had] sex.” Dkt. 34-2 at
11 (Ruder Memo at 10). Tilghman,' for her part, reported that l\/IcCullough described his ‘fmany
extramarital affairs, both past and present” and his “sexual relationship and marital problems
with [his] wife, including explicit details of [his] sexual frustrations.” Id. at 10-11 (Ruder Memo
at 9_10). The deciding officials found these accounts credible. Ruder cited “the level of detail

and the[ir] consistency.” Id. at 12 (Ruder Memo at 11). Peters agreed, noting that the statements

18

“were consistent” and that “there was no indication that the witnesses colluded.” Dkt. 34-3 at 5
(Peters Memo at 4). McCullough has not offered any evidence to show that the Department did
not honestly and reasonably believe the first reason it offered for his suspension See George,
407 F.3d at 415~16.

Second, McCullough disputes the basis for the Department’s finding`that he obstructed
his colleagues’ work. According to McCullough, he “provided the necessary information to
Miller to allow her to make purchases for the Kid’s Day event.” Dkt. 38-2 at 16-17. This
assertion, once again, amounts to a denial that the underlying incident occurred and is not
sufficient_standing alone_to demonstrate pretext McCullough further argues that “Miller
completely lacks . . . credibility” because, in his view, she falsely denied that she had a romantic
relationship with him. Id. at 17. As explained above, however, “it is the perception of the
decision maker which is relevant not the self-assessment of the plaintif .” Vatel, 627 F.3d at
1247 (citation omitted). Here, even if Ruder and Peters had reason to doubt Miller’s denial that
she and McCullough had had an affair_and the Court expresses no view on that question_the
could reasonably have concluded that her denial of an embarrassing and deeply personal matter
did not undermine her credibility regarding the conduct of the business of the office. The
relevant question, again, is whether McCullough has offered evidence that would permit a
reasonable jury to find that Ruder or Peters did not “honestly and reasonably believe” this
misconduct occurred. Brady, 520 F.3d at 496. He has not done so.

McCullough also asserts that Peters “failed to provide any documentation that Plaintiff
did not work with [Anthony] or that Anthony’s work Was affected in some way.” Dkt. 38-2 at
17. Unless some policy provides otherwise, employers generally have a good deal of flexibility

in fashioning an investigation when complaints are filed. See, e.g., Cral`g v. Mnuchin, 278 F.

19

Supp. 3d 42, 71-72 (D.D.C. 2017) (explaining that the employer “violated the policies
applicable” to the employment decision in question); Dave, 905 F. Supp. 2d at 16 (“The fact that
the investigation was short does not impugn its reasonableness.”). After a thorough
investigation, both Ruder and Peters found Anthony’s statement credible. McCullough,
moreover, has not identified any rule requiring the Department to provide documentation to
substantiate a witness’s account Thus, the Court cannot discern any procedural defect with
respect to the second justification for McCullough’s suspension, let alone one that “give[s] rise
to an inference of discrimination.” Kl`lby-Robb v. De Vos, 246 F. Supp. 3d 182, 199 (D.D.C.
2017).

Finally, McCullough claims that he “never made” the comments about a female job
applicant Dkt. 38-2 at 17-18. Once again, whether or not McCullough in fact acted as
described in the notice of suspension is not the relevant question for present purposes To
overcome the Department’s motion, McCullough must provide some basis for a reasonable jury
to find that Ruder’s or Peters’s asserted belief that he made the comments was pretextual. See
Brady, 520 F.3d at 496. McCullough has not done so. And without such evidence, “the Court
has no role . . . in resolving whether [he] actually committed the misconduct for which he wasl
punished and reprimanded_no matter how Wrong [the Department] may have been.” Dudley v.
Wash. Metro. Area Transl`tAuth., 924 F. Supp. 2d 141, 169 (D.D.C. 2013).

The Department conducted a comprehensive internal investigation into the workplace

strife at the center of this action and found that McCullough had engaged in misconduct3 Its

3 McCullough’s opposition states that OGC failed to interview “several important witnesses” but
does not elaborate further. Dkt. 38-2 at 10 n.13. According to the Department, McCullough had
previously claimed that LaSean Lucher, a “key Witness,” was not interviewed Dkt. 33-1 at 13.
But the Department further asserts that McCullough “never even mentioned Lucher prior to the

- suspension or asked OGC to interview her.” Id. at 14. McCullough does not dispute this. Even

20

findings were supported by the statements of multiple individuals Dkt. 34-2 at 10-13 (Ruder
Memo at 9-12); 34-3 at 7 (Peters Memo at 6); see also Dkt. 33-10 at 2-8 (Broden Interview at
1-7); Dkt. 33-1'1 at 2-5 (Miller lnterview at 1-4); Dkt. 33-12 at 2-4 (Tilghman lnterview at 1_
3); Dkt. 33-13 at 2_8 (Anthony Interview at 1-7). Ruder recommended a relatively modest
punishment_a.seven-day suspension_to deter him from repeating his actions Dkt. 34-2 at 14 n
(Ruder Memo at 13). Peters conducted his own review of the underlying evidence and agreed
with Ruder that the suspension was necessary and appropriate. Dkt. 34-3 at 8 (Peters Memo at
7). He also set forth in painstaking detail why he believed the punishment was justified. la'.
McCullough, in contrast, has failed to provide any evidence indicating that the Department’s
“stated belief about the underlying facts” was unreasonable Brady, 520 F.3d at 495.

2. Alleged Treatment of Comparators

McCullough also argues that the Department’s more favorable treatment of similarly
situated female colleagues provides circumstantial evidence of pretext and sex discrimination
According to McCullough, these colleagues_Miller, Broden, and Tilghman-made

inappropriate, sexually-oriented comments but, unlike him, they were not punished.4 A plaintiff

assuming that this issue is properly before the Court_which it is not, given McCullough’s
failure to provide any detail_the Department’s explanation for why Lucher was not interviewed
, precludes any reasonable inference of pretext See Burley v. Nat ’l Passenger Raz'l Corp., 801
F.3d 290, 293 (D.C. Cir. 2015) (finding lack of pretext because the decisionmaker was unaware
of plaintiffs race when the decision to fire him was made).

4

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can establish a genuine issue as to pretext by “produc[ing] evidence suggesting that the employer
treated other employees of a different” sex “more favorably in the same factual circumstances.”
Brady, 520 F.3d at 495. The plaintiff must first show, however, that these other employees are
appropriate comparators. Here, McCullough would need to show that his female colleagues
“were charged with offenses of comparable seriousness” and that ‘.‘all of the relevant aspects of
[his] employment situation were nearly identical to those of the [others].” Wheeler v.
Georgetown Unl`v. Hosp., 812 F.3d 1109, 1115-16 (D.C. Cir. 2016) (quoting Burley, 801 F.3d at
301); see also Holbrook v. Reno, 196 F.3d 255, 261 (D.C. Cir. 1999). Factors relevant to this
inquiry include “the similarity ofthe plaintiffs and the putative comparator’s jobs andjob
duties, whether they were disciplined by the same supervisor, and, in cases involving discipline,
the similarity of their offenses.” Burley, 801 F.3d at 301. “Whether two employees are similarly
situated ordinarily presents a question of fact for thejury,” Leavitt, 407 F.3d at 414-15 (quoting
Graham v. Long lsland R.R., 230 F.3d 34, 39 (2d Cir. 2000)), but “not inevitably so,” Coats v.
De Vos, 232 F. Supp. 3d 81, 93 (D.D.C. 2017). To avoid summaryjudgment, the plaintif “must
identify some evidence from which a reasonable jury could find that the offense he committed
was of similar seriousness to that committed by the more favorably treated comparator.”
Thompson v. Sessions, 278 F. Supp. 3d 227, 242 (D.D.C. 2017). McCullough has failed to meet
this burden

First, McCullough asserts, Broden sent “multiple inappropriate sexually-oriented
emails.” Dkt. 38-2 at 18. He cites three emails. The first two relay off-colorjokes, Dkt. 10-28
at 2; id. at 3; and the third is a chain letter that purports to “e-moon” the recipient, Dkt. 10-28 at
4-9. The Department agrees that these emails “are inappropriate for the workplace” but further

contends that that “is beside the point” because Broden’s conduct was not similar to

22

conversations McCullough allegedly initiated. Dkt. 39 at 18. The Court agrees First, the
emails were sent two years before the events at issue here and did not prompt a complaint
Second, Broden’s emails were relatively impersonal; they did not describe any aspect of her
personal life or ask that others share details about their personal lives The Department, in
contrast, found that McCullough described his own sexual past and commented on the sexual
histories of his coworkers, Dkt. 34-2 at 11 (Ruder Memo at 10), and that he asked various
individuals “to provide reciprocal details about [their] sexual relationship[s]” and requested
advice on “how to extricate [him]self from” his affairs and on how to avoid “acting on sexual
urges outside of . . . marriage,” id. (Ruder Memo at 10). There is no evidence, moreover, that
Broden’s emails prompted complaints or that she persisted in sending off-color emails despite
requests from others that she refrain from doing so. The Department, in contrast found that
McCullough “persisted” in making inappropriate comments even after a colleague asked him to
stop. Id. at 12 (Ruder Memo at 11). Whether an individual’s behavior prompts complaints
provides one measure of the relative seriousness of their offenses See Thompson, 278 F. Supp.
3d at 243-44. Finally, when OGC asked McCullough about these conversations, he “declined to
acknowledge or deny any specific conduct or statements” and instead inquired about why such
conversations were inappropriate “between ‘two grown adults.”’ Dkt. 34-2 at 11-12 (Ruder
Memo at 10-11). Ruder found this “obvious lack of sensitivity” troubling, id., and concluded
that some punishment was necessary to “deter.. . . similar offenses,” id. at 14 (Ruder Memo at
13). See Thompsorl, 278 F. Supp. 3d at 244 (differentiating putative comparator on the basis that
“there was [no] reason to believe, as was the case with [the plaintiff], that [the comparator] was

unwilling to change”). Broden’s emails are not “offenses of comparable seriousness” to the

23

misconduct attributed to McCullough and, as a result, Broden is not an appropriate comparator.5
Burley, 801 F.3d at 301.

' Second, according to McCullough, Miller, Broden, and Tilghman obstructed his work by
blocking his path to the bathroom and to the exit of their workplace. Dkt. 38-2 at 19. The
Department responds that this is.not an accurate characterization of McCullough’s own
allegations See Dkt. 39 at 16-17. To substantiate his argument McCullough cites an undated
letter that he purportedly sent to the Equal Opportunity C‘ommission. See Dkt. 10-11 at 1. The
letter states that on March 20, 2012, while McCullough was “going to the bathroom,” he
encountered Miller, Broden, and Tilghman in the hallway. ]d. at 2. They were standing “in such
a way that [McCullough had] to pass through in close proximity [to] the group.” Id. The letter
also asserts that “[o]n several occasions” when McCullough was “returning from the gym,”
Miller and Broden stood in front of the building, “star[ed] at [him] as [he] entered,” and followed
him into the building. Ia'.

Regardless of how one characterizes these occurrences, they do not establish pretext or
discrimination for two reasons First, the offenses were not equivalent to the offenses that led to

his suspension “[T]o be considered similarly situated, it is not necessary that the comparators

5 Although McCullough did not raise this in his opposition, McCullough reported to OIG
management that Tilghman and another employee “called [him] into one of thelr offices to ask
for [his] opinion on who had ‘the biggest a**. ”’ Dkt. 34- 2 at 12 (Ruder Memo at 11). Even if
true, this one- -off event is not equivalent to McCullough’ s frequent and persistent sexually
explicit comments See Thornpson, 278 F. Supp 3d at 244 (“[T]here ls no evidence that [the
purported comparator’ s] profane statements were part of a continuing pattern of abuse. ”
(internal quotation marks omitted)). More importantly, however, these “other employees denied
initiating or reciprocating” the inappropriate behavior. Dkt. 34- 2 at 12 (Ruder Memo at 11). In
contrast, the Department was “concerned” that McCullough purportedly “declined to
acknowledge or deny” any specific statements he was confronted with, and “asked what would
be inappropriate about such conversations, if they did occur, between ‘two grown adults ”’ Id.
at 1 1 (Ruder Memo at 10) No reasonable jury could conclude that these facts give rise to an
inference of pretext or discrimination ‘ ~

24

engaged in the exact same offense.” Wheeler, 812 F.3d at 11 18. The offenses need only be “of
‘comparable seriousness.”’ Ia'. However, no reasonablejury could find Miller, Broden, and
Tilghman’s behavior to be comparable to McCullough’s Their actions did not stop him from
completing his work assignments-“star[ing]” at McCullough or requiring him to “pass through
in.close proximity,” Dkt. 10-11 at 2, may have been inappropriate if true, but neither kept him
from completing his work. In contrast, McCullough_according to the Department-held up
several assignments for a significant period by refusing to cooperate with certain individuals

Second, even assuming that the actions of McCullough and of his colleagues were of a
comparable level of seriousness, McCullough’s argument runs headlong into another problem:
according to the Department, McCullough “never complained to management prior to [his]
suspension that his colleagues were obstructing his work.” Dkt. 39 at 17. McCullough’s written
reply to the notice of proposed suspension, which outlined his objections to the OGC Report, did
not mention that other colleagues had physically obstructed his ability to move freely. Id.; see
Dkt. 34-1 at 7. McCullough, moreover, has not offered any evidence showing that Ruder or
Peters knew of these incidents when they decided to suspend him. Because McCullough bears
the burden of showing that the employer’s proffered explanation was pretextual, Brady, 520 F.3d
at 494, this omission is fatal to McCullough’s claim that Miller, Broden, and Tilghman are
appropriate comparators An employer’s failure to discipline another employee cannot provide
evidence of pretext if the employer was.unaware of the other employee’s misconduct

To defeat summary judgment, McCullough needed to produce “sufficient evidence for a
reasonable jury to conclude that the [Department’s] asserted nondiscriminatory reason” for his
suspension “was not the actual reason, and that instead the [Department] was intentionally

discriminating against [him] on account of’ his sex. Wheeler, 812 F.3d at 1 114. He has not

25

done so. Accordingly, no reasonable jury could infer that the three justifications in the
suspension notices were pretextual and that the Department actually discriminated against him
based on his sex. .
CONCLUSION
For the reasons described above, the Court will GRANT the Department’s motion for
summary judgment, Dkt. 33.

A separate Order will issue.

l'sl' Randolph 1). Moss
RANDOLPH D. MOSS

United States District Judge

Date: January 8, 2019

26