United States District Court, N.D. Illinois, Eastern Division
CHRISTOPHER P. WESOLOWSKI, Plaintiff,
JANET NAPOLITANO, Secretary, United States Department of Homeland Security, Defendant.
LISA GODBEY WOOD, District Judge.
Presently before the Court are four motions: Defendant's Motion for Summary Judgment as to Count 1, Dkt. No. 55; Defendant's Motion for Summary Judgment as to Count 2, Dkt. No. 56; Defendant's Motion for Summary Judgment as to Count 3, Dkt. No. 57; and Plaintiff's Motion to Strike Defendant's Motions for Summary Judgment, Dkt. No. 59. For the reasons stated below, Plaintiff's motion is DENIED, and Defendant's motions are GRANTED.
I. Factual Background
This case arises from alleged workplace harassment of a federal law-enforcement instructor and his claims that he was retaliated against for engaging in EEO activity. The relevant facts are taken principally from Defendant's Statements of Material Facts and Plaintiff's responses thereto. See Dkt. Nos. 55-2; 56-27; 57-2; 71-2; 71-3; 71-4. Pursuant to Federal Rule of Civil Procedure 56(e) and Local Rule 56.1, all material facts not controverted by specific citation to the record are deemed admitted, unless otherwise inappropriate. Where the parties offer conflicting accounts of the events in question, this Court draws all inferences and presents all evidence in the light most favorable to the plaintiff. See Hamilton v. Southland Christian Sch., Inc. , 680 F.3d 1316, 1318 (11th Cir. 2012) (citing Moton v. Cowart , 631 F.3d 1337, 1341 (11th Cir. 2011)).
A. Events Prior to the First Selection Process
1. Work Before Harassment Began
In 2004, Plaintiff Christopher Wesolowski was hired as a Lead Firearms Instructor at the Federal Law Enforcement Training Center ("FLETC") in Glynco, Georgia. Dkt. No. 27 ¶ 14. In April 2007, he transferred to the Tactics Branch ("TAB") of FLETC's Enforcement Operations Division. Id . ¶ 15. He remained there until he transferred out of the branch in late 2008, as a result of events that began in February of that year.
2. Crabill's Remarks About Plaintiff
Around February 2008, male instructors began to ridicule Wesolowski for having long hair and wearing earrings. Id . ¶ 18. On March 17, 2008, Wesolowsk's fellow instructor, Tom Crabill, harassed Plaintiff about his appearance in front of students. Dkt. No. 71, at 6-7. Plaintiff had heard from others that Crabill was saying Plaintiff's hair was "unsat, " and that Plaintiff was "unprofessional, " "a piece of shit, " and a "leadership problem." Dkt. No. 71-2 ¶ 107. To Plaintiff directly, Crabill said, "[W]hat the fuck is up with that hair? What is all that about? Who are you trying to be? What, you think you're undercover? Oh, you just want everybody to think you're undercover." Id . ¶ 108. Plaintiff believes that the comments about his appearance would not have been made if he was a woman. Id . ¶ 105. Later that month, Plaintiff also learned that Crabill and another coworker, Bob Pitchford, were calling him a snitch. Dkt. No. 71, at 9.
Before Plaintiff grew his hair and Crabill began disparaging his appearance, Crabill knew Plaintiff socially, invited him to dinner in his home, and had social contact with him at motorcycle events and motorcycle-club functions. Dkt. No. 71-2 ¶ 10. Rather than intending to harass Plaintiff, Crabill claims that he was worried about Wesolowski's appearance at work because he was "wearing what appeared to be orange like fire fighter pants, his hair was in a bun in the back, [he was] unshaven, and [he was wearing] what appeared to be five earrings. Not the norm for what he was normally groomed and dressed like." Id . ¶ 11.
3. Plaintiff's Complaint to Lambraia About Crabill
Wesolowski notified his management chain, including Branch Chief Tony Lambraia and Division Chief Randy Melvin, that he was being harassed by Crabill. Dkt. No. 27 ¶ 22. On April 3, 2008, in response to Wesolowski's complaint, Lambraia held a meeting with Plaintiff and Crabill. Dkt. No. 71-2 ¶ 8. To Plaintiff's knowledge, this was management's only response to Plaintiff's complaint that Crabill was causing problems. Wesolowski Dep., at 40:8-9.
The meeting was held at least a week after Plaintiff informed Lambraia that Crabill was disparaging his appearance. Id. at 40:10-21. According to Plaintiff, Crabill lied at the meeting: "He denied that he was saying any of those things, and, of course, he tried to say that he was trying to be my friend, trying to be my pal when nothing that he said is something that any pal or friend would say." Id. at 41:1-11. Although Wesolowski spoke up for himself in the meeting, he thought that "it was useless trying to have [a] conversation with [Crabill] when [he knew that Crabill was] going to sit there and lie to [his] face." Id. at 41:17-23. Lambraia stated that he had never counseled Wesolowski about his appearance and that if Crabill was telling people that he had, then Crabill was telling a "flat out lie." Id. at 42:2-10.
Overall, the meeting's big picture was that they had a mission, and Lambraia asked if Crabill and Wesolowski could "work professionally with each other without having to deal with [issues] any further." Id . Wesolowski said that he could not "work with anybody that consistently belittles [him] and makes it impossible for [him] to come to work not knowing what to expect"; rather, he needed to "come to work with the expectation of being able to do [his] work unaffected and without having somebody poison the well every time [he] turn[s] around." Id. at 11-16. Indeed, "[t]here was a promotion coming up, and [he] had to be concerned with that." Id. at 42:17-18. Lambraia listened as Wesolowski talked. Id. at 42:19-22. At the end of the meeting, with all three present, Larnbra'a repeated that "we have a mission to do, you need to be professional, and [Crabill's actions] will not be tolerated." Id. at 42-43.
4. Brad Smith's Uniform Policy
Brad Smith was the Deputy Assistant Director in FLETC's Training Directorate from March 2004 to March 2008, where he was a supervisor over the Enforcement Operations Division (EOD). Dkt. No. 71-2 ¶ 1. Smith knew Plaintiff professionally but, as a third-line supervisor, he had minimal professional contact with him and did not socialize with him. Id . ¶ 2. In the 2007-2008 time frame, as part of "the normal updating procedures, " Smith was "leading the effort" to revise the FLETC uniform directive that had reached its sunset date in 2006. Id . ¶ 3.
In the course of doing so he sought input from managers and employees, and some employees expressed concerns that the issued uniforms and gear were not sufficient for applicable work environments. Id . ¶ 4. Smith claims that he has not used Plaintiff or any other employee as an example to promote a uniform policy and that he has no "ax to grind" with Plaintiff. However, according to Plaintiff, Lambraia had told Plaintiff that Smith had been trying to push the dress code policy and had brought Plaintiff "up in front of numerous people as an example of what not to look like." Wesolowski Dep., at 38-39. Further, Mossburg and Lambraia mentioned that someone from senior management had tried to convince Lambrala to counsel Wesolowski and try to get him on track with what the new policy was going to be. Id. at 39:1-6. Plaintiff has not alleged or sworn that he heard Smith's purported comment; rather, he heard of it only after it was relayed from Lambraia. Dkt. No. 71-2 ¶ 7.
5. Pitchford's Reports About Plaintiff
On April 11, 2008, Pitchford and Plaintiff had a disagreement about Plaintiff's apparent failure to report to teach a class. Dkt. No. 71-3 ¶ 27. Pitchford prepared a memo about the disagreement. Id . ¶ 28. In the memo, Pitchford wrote that when he was told that Plaintiff was not present, he called Plaintiff's cell phone and got his voice mail, checked the call line (on which employees are to report any unexpected absence) several times, and then sent another instructor to cover the class. Id . ¶ 29. Later that day, Plaintiff called him and said that he had called the call line twice but reached the voicemail of someone else, stating that the number did not work. Id . ¶ 32. Pitchford wrote in the memo that Plaintiff had called the wrong number (2635, rather than 6235). Id . ¶ 33. Plaintiff was not hostile and did not challenge Pitchford. Dkt. No. 71-43 ¶ 22. Although Pitchford says he only wanted to ensure Plaintiff's work status and that he was all right, others had reported to Plaintiff that Pitchford was claiming that Plaintiff was absent without leave and that Pitchford was going to report him to the Special Investigations Division (SID). Id . ¶ 23.
The same day, Pitchford told Chief Security Officer Ronnie Edge that Wesolowski was "pimping [himself] out as a GS-15 criminal investigator" and that he had grave concerns because he felt Plaintiff was acting illegally and "guys in the unit [were] talking about it." Wesolowski Dep., at 64:6-12; Dkt. No. 71-2 ¶ 21. Pitchford felt that something needed to happen about Wesolowski telling people that he was actively working an investigation for the SID. Wesolowski Dep., at 64:12-16. Pitchford claims that several coworkers-Crabill, Ron Rods, and Tony Barber-told him that Plaintiff was telling them that he was working for SID and was undercover. Dkt. No. 71-2 ¶¶ 14, 19. Wesolowski denies that this is true and alleges that Pitchford and Crabill created the rumor. Id . ¶ 14. Pitchford swears that he told Edge that he had not heard Wesolowsk' make the assertions, but Plaintiff denies that this is accurate. Id . ¶¶ 16, 20.
According to Edge, in response to Pitchford's concerns, he asked whether Pitchford had gone to Dave Behrend, the Division Chief of the SID. Dkt. No. 55-11, at 14:17-22. After Pitchford said he had not, Edge recommended that he go speak to Behrend. Id. at 14:23-24. Edge felt that Behrend, as Chief of SID, should be apprised of the rumor. Dkt. No. 71-2 ¶ 22. However, according to Pitchford, Edge said he was going to talk to Behrend about it, and to avoid the situation from being "blown out of context, " Pitchford reported his conversation with Edge to Lambraia. Id . ¶ 18. Two to four days later, Edge asked Behrend if Pitchford had come to him about the matter, learned that Pitchford had not, and told Behrend himself what Pitchford had told him. Id . ¶ 23. Behrend said that he would look into it. Id.
On April 16, 2008, Melvin and Lambraia approached Edge and discussed ongoing "personality issues and conflicts" between Wesolowski and another instructor; in turn, Edge advised them of what Pitchford had told him on April 11. Id . ¶ 24; Dkt. No. 71-7, Ex. 2. When asked by Melvin and Lambraia whether it was inappropriate for Plaintiff to raise the issue with Edge first instead of them, Edge told them that people approached him with information about administrative or potentially criminal issues on a regular basis. Dkt. Nos. 71-2 ¶ 25; 55-11, at 21:8-15.
6. Wesolowski's Complaint to Lambraia
On April 15, 2008, Plaintiff sent an email to Lambraia. Dkt. No. 71-2 ¶ 26. In the email, Plaintiff expressed frustration with his work environment and the continuation of "defamatory comments." Id . Plaintiff said that he had received a phone call from the SID that morning to alert him that "an unnamed and reliable source" had called Behrend to tell him that Pitchford was telling people that Wesolowski was posing as an SID investigator and claiming to be a GS-15 employee. Id . Wesolowski denied any truth to Pitchford's assertions, concluded that "this has in fact become a hostile work environment for me, " and asked for "an appropriate resolution." Id.
The April 15 email asserting that Plaintiff was experiencing a "hostile work environment" says nothing about the allegedly hostile work environment being related to Plaintiff's gender, to his gender non-conformity, or to "sex-stereotyping." Id . ¶¶ 109-110. However, Plaintiff contends that Lambraia clearly understood that the complaint also involved the harassment about his appearance, especially after there were two subsequent meetings to address Plaintiff's issues. Id . Thus, to show that the complaint was gender-based, Plaintiff apparently relies on an implicit existence of gender stereotyping from the attacks on his appearance and Smith's uniform policy. Id . ¶¶ 111-12. Although the attacks on Plaintiff's appearance were not in regard to him being "unmanly, " "girly, " "effeminate, " "inappropriate for a man, " or otherwise exhibiting gender non-conformity, Plaintiff maintains that the same comments would not have been made if he was a woman. See id. ¶ 113 (citing Wesolowski Dep., at 199:5 ("I don't believe that if I had been female I would have been subjected to the same line of ridiculous questions and comments from other instructors regarding my appearance.")). Further, although Plaintiff has not alleged that Pitchford made the "false rumor" report based upon Plaintiff's gender or a gender non-conforming appearance, he contends the false rumor was in reprisal of protected opposition activities. Id . ¶ 115.
7. Management Inquiry into Wesolowski's Complaints
In response to the email, and after being advised by legal counsel, Lambraia and Melvin conducted a management inquiry into Plaintiff's claim of hostile work environment by speaking to some of the other instructors in the Tactics Branch. Id . ¶¶ 28-29. The inquiry included interviews of Plaintiff, Crabill, Pitchford, Edge, Tony Barber, and Jamie Hodge, among others. See id. ¶ 30. After reviewing the information and being advised by the Chief Counsel's Office, Lambraia and Melvin found that Plaintiff's claim of hostile work environment could not be substantiated. See id. ¶ 29, 31.
On April 30, 2011, Lambraia emailed Plaintiff to notify him of the inquiry's actions and findings. Id . ¶ 35. The email states that Melvin and Lambraia had interviewed Plaintiff and several others, and from these interviews, others said they "were just trying to help" Plaintiff and were "just kidding" about Plaintiff being undercover. Id . The email also spoke to Pitchford's discussion with Edge and said that the scheduling dispute with Pitchford was a misunderstanding rather than motivated by malice. See id. ¶ 37. Lambraia wanted to speak to Plaintiff "to make sure that [they] ha[d] a mutual understanding and [were] able to continue forward." Id . ¶ 38.
After the inquiry concluded, Lambraia came to Plaintiff and asked how he was doing. Wesolowski Dep., at 77:5-9. Plaintiff told Lambraia that he felt isolated and that his being unwelcome by others was obvious. Id. at 77:10-13. In response, Lambraia asked, "To what end are you going to take this? To what end do you plan on continuing to pursue this?" Id. at 77:14-19. Wesolowski does not believe Lambraia was genuinely concerned about him or his well-being. See Dkt. No. 71-2 ¶ 29.
B. First Selection Process
1. General Process
In May, there was an announcement for a Senior Instructor position ("the May Position") that was open only to FLETC employees. See Dkt. No. 71-3 ¶ 5. On May 16, 2008, Wesolowski applied for the May Position. Dkt. No. 71-9, at 29. Crabill applied for the same job. See Dkt. No. 71-10. A certificate of eligible applicants included Wesolowski, Crabill, and Tony Barber. Dkt. No. 27 ¶ 32. Wesolowski was interviewed in June 2008. Id . ¶ 33.
Interviews were conducted and applicants were assessed by a panel that included Lambraia, Adrianna Roddini,  and Bill Mossburg. Id . Melvin was the selecting official to whom the panel's recommendation was made. See id. For final approval, the selection was submitted to Dennis Keith, Deputy Assistant Director of the Office of Training Operations. Dkt. No. 56-4, Ex. B, at 5.
2. Panel's Reasons for Not Selecting Plaintiff
Crabill was ultimately recommended for the position. Dkt. No. 71-3 ¶ 7. Lambraia swears that two sets of interviews were done; the same five questions, taken primarily from the vacancy announcement, were asked of all applicants; the panel members took notes on prepared forms; and the panel then engaged in a discussion based upon interview performance and resumes. Dkt. No. 71-2 ¶ 43. Further, each panel member viewed Crabill as the best candidate and agreed that he should be selected. See Id . ¶¶ 44, 50, 63, 81-82. Crabill was the top candidate even after Lambrala was told to reconvene, and actually did reconvene, the panel for additional interviews of people from outside the branch. Id . ¶ 81.
All panel members and Melvin deny that a candidate's engagement in EEO activity affected their decision. Although Lambraia denies being aware that Plaintiff was engaged in EEO activity or that such activity was considered in making his decision, Wesolowski disputes this based on Lambraia's involvement in the management inquiry of Wesolowski's complaints. Id . ¶ 46. Similarly, although Melvin testified that he was unaware whether Plaintiff had engaged in EEO activity and that he did not consider such activity in approving the panel's decision, he was also involved in the management inquiry into Wesolowski's complaints. See id. ¶CJJ 88-90. As to Roddini, she swears that she was unaware of any EEO activity and denies that such activity impacted her decision. Id . ¶ 60. Finally, Mossburg admits that Wesolowski advised him that he had filed a complaint against several coworkers for harassing him because of his earrings and hair, but was "not aware of what level of complaint or if he had filed with EEO." Id . ¶ 62.
Instead of citing Wesolowski's asserted EEO activity, the panel members unanimously justify their decision based on the candidates' comparative qualifications and Wesolowsk''s poor interview performance. More specifically, the panel found Crabill to have greater experience, a better application, and better responses to the panel's questions, while Wesolowski was negative about past jobs and answered one question by saying he had already answered it in a previous response. Id . ¶¶ 45, 49, 61, 63.
In turn, Plaintiff asserts that Defendant's evidence, especially Lambraia's testimony, lacks credibility. See, e.g., id. ¶ 48. Plaintiff emphasizes his belief that Crabill was preselected, which is based on a conversation with Mossburg in which Mossburg said it would be nearly impossible to overcome Crabill's experience. Id . ¶ 44. Finally, Plaintiff contends that Lambrala, given his knowledge of Plaintiff's complaints, tainted the selection process by heading the panel and developing questions, discussing candidates after each interview, and reviewing an ordinal ranking of candidates before recommending a person to Melvin. See id. ¶ 60. However, Mossburg testified that he was not directed by Smith, Melvin, or Lambraia "who the selectee was going to be" and that he did not feel that Lambraia was directing how the candidates would be ranked by the panel. Id . ¶ 87.
3. Plaintiff's Interview Inquiry to Mossburg
On September 8, 2008, after Crabill's selection was announced, Wesolowski asked Mossburg how he performed in the interview. Dkt. Nos. 71-8, at 2:7-91; 56-10, Ex. H. Mossburg said that Wesolowski "did fine" and that "it was close." Dkt. No. 71-8, at 2:12; see also id. at 6:2-3 ("Mossburg: Both of you did very good at interviewing." (capitalization altered)). Because Crabill had been working with the Active Shooter program and hiring was being made specifically for that program, Mossburg said that Crabill would "clearly [be able] to answer [certain] questions better." Id. at 2:10-19. Further, although Crabill and Wesolowski had similar experience, "it started to split a little bit" when Crabill could talk about his federal experience as a supervisor for ICE. Id. at 3:11-22. Mossburg went on to say that "[l]t was going to be almost impossible for [Wesolowski] to get over" Crabill's experience In the Active Shooter Program, as "it groomed" Crabill for the May Position. Dkt. Nos. 71-2 ¶ 73; 71-8, at 7:15-21, 8:1-2.
At one point, Mossburg said, "We were actually told then who the selection was going to be. I kinda of knew who the selection was going to be. I know I couldn't say anything." Dkt. No. 71-2 ¶ 69. He went on: "But we could tell then - well, we were asked simply to rate the applicants based on the interviews; one, two and three." Id . ¶ 70. As to Roddini, Mossburg said she was "very professional about it" and twice said she felt "pretty much the same thing." Id . ¶ 71. Mossburg stated that the questions asked in the interviews "were right off the application" quick-hire questions, and that when Lambraia "does these things[, ] he does them by the numbers." Id . ¶ 72. Mossburg also said that he and Lambraia were inclined toward applicant Tony Barber, but Plaintiff and Crabill were ahead of him before scoring questions. Id . ¶ 74.
C. Aftermath of First Selection Process
1. "Possible Litigation" Email
On September 2, 2008, in an email titled "Possible Litigation, " Melvin memorialized a conversation with Wesolowski regarding Wesolowski's concern that he did not receive an award or commendation for an action taken off of FLETC's campus. Id . ¶ 40. The writing did not mention any personnel matters or disputes. Dkt. No. 71-13.
2. Announcement of Promotion
Crabill was recommended for the position on July 29, and the selection was approved on August 24, 2008. Dkt. No. 71-3 ¶ 7. On August 4, 2008, Bob Humkey replaced Lambraia as the Chief of TAB and became Plaintiff's first-line supervisor. Id . ¶ 8. On September 5, 2008, Humkey sent out an email announcing Crabill's selection, in which he had not participated. Id . ¶ 9. It was on this date that Wesolowski says that he first became aware of the alleged discrimination. Dkt. No. 71-12, at 3.
3. Plaintiff's Inquiry to an EEO Counselor
On September 15, 2008, Wesolowski contacted an EEO counselor. Id . The EEO counselor's report shows that the counselor interviewed Humkey on September 30, 2008, for approximately an hour and a half because Humkey was Plaintiff's new supervisor. Dkt. No. 71-4 ¶ 16. Despite the fact that Wesolowski previously told Humkey on September 18, 2008,  that he had filed an EEO complaint, Humkey swears that he has only a vague recollection of the interview. Id . ¶ 17. He says it made "little to no impression" on him because his role in the matters was small and the interview was brief. Id . ¶ 18. Humkey swears that he did not develop any animus toward Plaintiff because of the EEO interview or any of Plaintiff's EEO activity, nor does he hold ...