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McKinnon v. Gonzales

July 24, 2009


The opinion of the court was delivered by: Hon. Jerome B. Simandle



Plaintiff Henry E. McKinnon, an employee of the Federal Bureau of Prisons ("BOP"), filed this action against the United States Department of Justice and then-Attorney General Alberto R. Gonzales, alleging that Defendants discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et seq. ("Title VII"). Specifically, Plaintiff complains that he was discriminated against on account of his sex (male), subjected to a hostile work environment, and retaliated against for having engaged in activity protected by Title VII.*fn1

Defendants have moved for summary judgment [Docket Item 21], arguing that Plaintiff has failed to adduce evidence sufficient to raise a material factual dispute as to any of these claims. For the reasons set forth below, the Court will grant in part and deny in part Defendants' motion.


A. Facts*fn2

1. Unit Manager Position

Plaintiff Henry E. McKinnon, a forty-six-year-old African-American man, is an employee of the BOP who, at all times relevant to this lawsuit, has worked as a Unit Manager at the Federal Correctional Institution in Fort Dix, New Jersey ("FCI Fort Dix"). (Compl. ¶¶ 2-4.) As a Unit Manager at FCI Fort Dix, Plaintiff was responsible for the administration of one of the institution's housing units, which included "responsibility for the program operations and security of the assigned unit," as well as supervision of the assigned unit's staff. (Blaine Cert. Ex. A at 3.)

2. AW Nichols Becomes Plaintiff's Supervisor

Between August 2004 and March 2006, Plaintiff's immediate supervisor was Jacqueline Nichols, who has served as an Associate Warden at FCI Fort Dix since March 2002. (Nichols Dep. at 5, 18.) Plaintiff and Associate Warden Nichols ("AW Nichols") enjoyed a "cordial" relationship when AW Nichols first arrived at FCI Fort Dix. (McKinnon Dep. at 221.) According to Plaintiff, before AW Nichols became his supervisor, he and AW Nichols would occasionally confide in each other; for instance, Plaintiff had filed an Equal Employment Opportunity ("EEO") complaint in 2001 asserting that he had been the victim of sex discrimination, and AW Nichols had "counseled McKinnon and suggested that he settle the case." (Pl.'s Statement of Material Facts ("SUMF") ¶ 19; McKinnon Dep. at 222.) Plaintiff settled his 2001 EEO complaint with the BOP in November 2003. (Compl. ¶¶ 8-9.)

The relationship between Plaintiff and AW Nichols began to deteriorate around the time that AW Nichols became Plaintiff's supervisor. The initial discord in Plaintiff's and AW Nichols' relationship appears to trace back to June 2004, when the then-Warden of the prison, Charles DeRosa, did not select AW Nichols for an Executive Staff position. (McKinnon Dep. at 22.) According to Plaintiff, AW Nichols was angry over having been passed over for the position, and she stated to Plaintiff, apparently in reference to her prior advice that Plaintiff settle his 2001 EEO complaint, "I told you [Warden DeRosa] wasn't going to help you." (Id. at 21.) Plaintiff felt that AW Nichols' comment was "derogatory" and he refused to join AW Nichols in "bad mouth[ing]" Warden DeRosa. (Blaine Cert. Ex. D-1 ¶ 4; McKinnon Dep. at 21-22.) Instead, Plaintiff informed Warden DeRosa of what AW Nichols had said about him, which, according to Plaintiff, made AW Nichols "extremely angry," and "set [her] off on a path to ruin the reputation of Plaintiff." (Blaine Cert. Ex. D-1 ¶ 4.)

Shortly after AW Nichols became Plaintiff's supervisor in August 2004, the two began to have disagreements over AW Nichols' management style. In October 2004, AW Nichols berated one of Plaintiff's staff, Mr. Sanchez, for the manner in which Mr. Sanchez and Plaintiff had handled an incident report that had been generated for a disciplinary code violation committed by an inmate in Plaintiff's unit. (McKinnon Dep. at 25.) Plaintiff felt that AW Nichols "undermined [his] authority" by speaking directly with Mr. Sanchez about the matter rather than speaking to Plaintiff himself and believed that it was not appropriate for AW Nichols to have "gone out of channel." (Id.)

Also in October 2004, a probationary employee holding a secretarial position in Plaintiff's unit at FCI Fort Dix, Daisy Rodriguez, was terminated for having left work fifteen minutes early without requesting Plaintiff's permission. (Id. at 6.) Plaintiff believed that because he raised and investigated the issue of Ms. Rodriguez's early departure from work, (Nichols Dep. at 30), he would be targeted by institutional staff who disagreed with the decision to terminate Ms. Rodriguez, and on October 15, 2004, Plaintiff wrote a memorandum to AW Nichols "to ensure supporting documentation is [in] place in my personal file prior to any potential staff misconduct toward me." (Pl.'s Opp'n Br. Ex. H at 1.) The memorandum stated in relevant part:

[S]everal institutional staff members made inquiries in regard to Daisy Rodriguez['s] termination. Specifically, some asked why was she terminated. My response to all was, "No comment." It should be noted, several of my long time colleagues advised me to, "Watch My Back" and Watch out for the, "Set-UP" . . . .

It is very unfortunate one have to take these types of precautionary steps in order to do their job. It is my sincere hope I will be able to continue to carry out my responsibilities here at FCI Fort Dix without the fear of reprisal, retribution or retaliation from the Union or any one else for that matter . . . .


After Ms. Rodriguez was terminated, the unit that Plaintiff supervised, Unit Six, as well as a different unit, Unit One, each had only one secretary; normally, residential units at FCI Fort Dix have two secretaries. (McKinnon Dep. at 15-16.) In early 2005, interviews were conducted for secretarial staff, and one secretary, Tana Janokowski, was hired. (Id. at 14, 16.) Plaintiff believed that Ms. Janokowski should have filled the vacancy in his unit, but AW Nichols instead determined that Ms. Janokowski would fill the vacancy in Unit One, (id. at 14); the Unit Manager for Unit One at the time, Allia Lewis, was a woman, (id.), and Plaintiff believes that AW Nichols gave preferential treatment regarding Ms. Janokowski's assignment to Ms. Lewis based upon Ms. Lewis' gender. Warden John Nash*fn4 later told Plaintiff that the decision to assign Ms. Janokowski to Unit One was based upon "cost initiatives." (Id.)

Plaintiff alleges that at approximately the same time, AW Nichols left vacant the position of Residential Drug Abuse Program ("RDAP") counselor in his unit.*fn5 (Id. at 17.) According to Plaintiff, AW Nichols failed to fill the position because she "didn't understand the importance of having that position filled . . . [and] thought that an RDAP case manager was the same as a regular case manager." (Id. at 17-18.)

3. April 11, 2005 Communications

The interpersonal dispute between Plaintiff and AW Nichols continued into the spring of 2005.*fn6 On April 11, 2005, AW Nichols left a voicemail for Plaintiff in which she expressed "concerns about some unprojected leave that [Plaintiff] took" in March when his mother had passed away.*fn7 (Id. at 23.) Plaintiff felt that AW Nichols' voice message expressing concerns about the leave he had taken was "threatening," "harassing," (McKinnon Dep. at 23), and "insensitive," (id. at 226), and he called AW Nichols to address her voicemail.

Plaintiff was unable to reach AW Nichols, who was in a meeting when he called, and he instead spoke with her secretary, Tonya Wallace. (Blaine Cert. Ex. G-1 at 1.) The parties dispute the contents of Plaintiff's conversation with Ms. Wallace. According to Defendants, Plaintiff informed Ms. Wallace that he had attempted to reach AW Nichols two or three times and stated that "she needs to call me right away. I am not the one. I'm not the one (person) to play with." (Id. at 1.) According to Defendants, Plaintiff then stated to Ms. Wallace that he would "string her [AW Nichols] up," (id.), or "string [AW Nichols] up the flag pole." (Blaine Cert. Ex. G at 2.) Ms. Wallace recalled that Plaintiff was "angry and frustrated" and "loud as if to vent." (Blaine Cert. Ex. G-3 at 2.) According to Plaintiff, while he "felt that Ms. Nichols was playing games with [him]," he did not threaten AW Nichols or make any remarks about stringing her up the flagpole. (Blaine Cert. Ex. G-4 at 2.) Plaintiff does not dispute that he stated to Ms. Wallace that he "was not the one to play with." (Id.)

Ms. Wallace spoke with Associate Warden David Huerta ("AW Huerta") about Plaintiff's call, and when AW Nichols returned from her meeting, Ms. Wallace informed her of the call. (Blaine Cert. Ex. G at 2.) AW Nichols and AW Huerta then called Plaintiff together on the speaker phone. (Id.) According to Defendants, during this telephone call, Plaintiff admitted to having stated that he would string AW Nichols up, (id.; Blaine Cert Ex. G-3 at 2); Plaintiff maintains that he did not make any such admission to AW Nichols and AW Huerta. (Blaine Cert. Ex. G-4 at 2.)

4. Plaintiff's EEO Complaint and the SIS Investigation

While it is clear that an investigation into Plaintiff's April 11, 2005 statements was subsequently initiated, the timing of the investigation, as well as the relationship between the investigation and other events that transpired during the summer of 2005, are the subject of dispute between the parties. It is undisputed that Plaintiff met with Warden Nash on three occasions in May 2005 to complain that he felt that he was being harassed by AW Nichols. (Nash Dep. at 27.) AW Nash did not consider separating Plaintiff and AW Nichols because he "felt she was treating him the same as she treated everybody else" and because he did not believe Nichols was harassing Plaintiff. (Id. at 32.) Plaintiff asserts that at some point during the month of May 2005, he complained to Warden Nash about AW Nichols, and Warden Nash warned Plaintiff not to do anything that Plaintiff would regret. (McKinnon Dep. at 55.) Warden Nash denies having made any such comment to Plaintiff. (Nash Dep. at 37.)

It is undisputed that during this time, Plaintiff and AW Nichols repeatedly clashed over his time and attendance sheets and other administrative matters, with Plaintiff complaining that AW Nichols was "picking on him" or micro-managing him, and with AW Nichols asserting that she simply was being "meticulous" about time and attendance matters.*fn8 (Nichols Dep. at 35.) On June 6, 2005, following an exchange of emails between Plaintiff and AW Nichols concerning such scheduling matters, Plaintiff wrote to AW Nichols asking her to "acknowledge this response as my official filing of an EEO Complaint against you for Harassment, Retaliation/Reprisal, Threats, Interfering With An On-going EEO Investigation, etc." (Blaine Cert. Ex. G-5 at 1.) Plaintiff filed his EEO complaint that day, complaining that he had been harassed. (Blaine Cert. Ex. B.)

Plaintiff alleges that the investigation into his April 11, 2005 remark to Ms. Wallace did not commence until just three days after he filed his EEO complaint, on June 9, 2005, when he and the other witnesses to the events of April 11, 2005 were interviewed by John Pittman, FCI Fort Dix's Special Investigative Agent ("SIA Pittman"), (Blaine Cert. Ex. G-5 at 3); the timing, Plaintiff maintains, is suggestive of the retaliatory nature of the investigation. Defendants assert that Plaintiff's April 11, 2005 telephone call "was referred for investigation shortly after the incident occurred on April 11, 2005 . . .[,] well before McKinnon's initial EEO contact on June 6, 2005," (Defs.' Reply Br. at 11), although there appears to be no evidence in the record that establishes that the investigation was launched immediately after the April 11, 2005 telephone call.*fn9 At the conclusion of the investigation, and following a hearing before Warden Nash at which Plaintiff was represented by counsel, Plaintiff was suspended for three days for having committed unprofessional conduct. (Blaine Cert. Ex. G-7 at 1.)

5. Unit Transfers

On August 22, 2005, all unit managers for the six units at FCI Fort Dix were reassigned to different units from those which they had been managing. (Blaine Cert. Ex. H at 1.) Such unit reassignments occurred regularly at the institution "when management decides that the units are ready for a change." (McKinnon Dep. at 153.) During his years as a unit manager at FCI Fort Dix, reassignments of the unit managers occurred eight times, and Plaintiff has managed each of the six units at one time or another. (Id. at 152-53.)

Plaintiff was transferred from Unit Six to Unit Three, while Allia Lewis, whom Plaintiff asserts received favorable treatment from AW Nichols, was transferred to Unit Four.*fn10 (McKinnon Dep. at 156.) According to Plaintiff, none of the unit managers "wanted to go to Unit 3 . . . because that's the hostile unit." (Id. at 161.) Plaintiff concluded that the unit managers' concerns over the state of Unit Three were well-founded, in that he determined shortly after becoming Unit Manager that Unit Three was "out of control." (Pl.'s Opp'n Br. Ex. I at 1) (capitalization omitted). Two days after he was transferred to Unit Three, Plaintiff wrote an email to AW Nichols with the subject line "snapshot unit 3, (hostile working environment)." (Id.) (capitalization omitted). In his email, Plaintiff detailed a list of problems: "staff not speaking to one another, one diming out the other, one calling the other staff a rat, snitch, inmate lover," as well as operational concerns, such as "[i]ncident reports not being logged in and accounted for." (Id. at 1-2.) Plaintiff also informed AW Nichols that inmates were threatening staff members.*fn11 (Nichols Dep. at 84.)

AW Nichols responded to Plaintiff's email with a lengthy email, in which she commended Plaintiff for having "laid the groundwork to build your team," instructed Plaintiff to report "violations that are perceived to have occurred" in order for such matters to be investigated, and advised Plaintiff to hold his staff "accountable for the work they do or don't do." (Id. at 1.) Warden Nash, to whom Plaintiff's email was forwarded, wrote to AW Nichols, asking her to "call Mr. McKinnon in and explain to him his responsibility to stop this type of behavior." (Id. at 5.) Plaintiff continued to correspond with Warden Nash and AW Nichols about problems with Unit Three, expressing his concern that someone in the unit could "get[] hurt either from inmates or from their fellow staff members." (Pl.'s Opp'n Br. Ex. J at 1.) Plaintiff believes that Warden Nash and AW Nichols failed to respond appropriately, and he wrote to the BOP's Office of Internal Affairs ("OIA") to complain of "gross negligence on the part of the Executive Staff," stating that "staff feel their lives are in jeopardy from inmates & unit staff are going at each other's throat." (Pl.'s Opp'n Br. Ex. K at 1.) The OIA's response to Plaintiff's complaint, if any, is not evident from the record. At some point "[a]t the height of the hostility in Unit 3," Plaintiff submitted a written request to be transferred out of the unit, which was not granted. (McKinnon Dep. at 60.)

In September 2006, Plaintiff attended a Special Housing Unit ("SHU") meeting in the office of Charles Samuels, who had become the warden of FCI Fort Dix at the beginning of 2006. Plaintiff was the Unit Manager of one of the inmates being held in the SHU, and, as such, he was expected to provide Warden Samuels with information pertaining to the inmate. (Defs.' SUMF ¶ 50; Pl.'s SUMF ¶ 50; Blaine Cert. Ex. K at 1.) Warden Samuels became upset when Plaintiff was unable to provide such information at the meeting, and wrote an email to Plaintiff and Associate Warden Claude Maye ("AW Maye") stating that Plaintiff was "not authorized to attend the SHU meeting or [the] Department Head meeting until [Warden Samuels] receive[d] certification from [AW Maye] he knows his case load as the assigned Unit Manager." (Blaine Cert. Ex. K at 1.) Plaintiff missed one SHU meeting and was not able conduct one round through the SHU as a result of this incident, and after Plaintiff met with AW Maye, Plaintiff was able to return to SHU meetings and rounds "ASAP." (McKinnon Dep. at 109-12.) Plaintiff believes Warden Samuels' response to his failure to prepare for the meeting was unnecessary and related to his June 6, 2005 EEO complaint.*fn12

In November 2006, Plaintiff was transferred to the Unit Manager position in Unit Four.*fn13 (Id. at 50.) In March 2007, four months after Plaintiff became the Unit Manager of Unit Four, Warden Samuels ordered that Unit Four, as well as two additional buildings on the west side of FCI Fort Dix, be temporarily closed as a result of the reduction of 1,200 inmates in the prison population. (Blaine Cert. Exs. N, N-1, N-2, N-3; McKinnon Dep. at 182-85.) According to Warden Samuels, "closing the west side would allow for better resource management, a reduction in overtime usage by correctional officers due to staffing shortages, and repair and renovation of certain west side buildings while they were unoccupied." (Samuels Decl. ¶ 2.) Plaintiff believed that Warden Samuels should have closed the east side of the institution rather than the west side, and felt that Warden Samuels closed the west side of the institution in order to "harass[] [and] retaliat[e]" against Plaintiff for having filed his June 2005 EEO complaint. (McKinnon Dep. at 188.)

Unit Four was closed down by May 9, 2007; Plaintiff remained the Unit Manager of Unit Four until it closed, and on May 2, 2007, he became Unit Manager of Unit Two, which remained open. (Id. at 193-94.) Plaintiff has since served as Unit Manager for Unit Two, where his responsibilities are no different than they were when he managed Unit Four. (Id. at 194, 197.)

B. Procedural History

Plaintiff first contacted an EEO counselor regarding his complaint of discrimination by AW Nichols on June 6, 2005, and on July 5, 2005, Plaintiff filed an administrative complaint with the BOP, complaining of sex discrimination and retaliation. (Blaine Cert. Ex. B at 1.) Plaintiff amended his EEO complaint in September 2005 to assert that he had been transferred to a hostile working environment (Unit Three), (Blaine Cert. Ex. B-1 at 1), and amended it again in November 2005 after he was disciplined for his April 11, 2005 telephone conversation with Tonya Wallace. (Blaine Cert. Ex. B-2 at 1.)

Plaintiff filed the civil Complaint in this action on April 9, 2007 [Docket Item 1]. He alleges that he was retaliated against for engaging in Title VII-protected activity (Count I), that he was discriminated against on account of his sex (Count II), and that he was exposed to a hostile work environment (Count III). Plaintiff's wife, Tami McKinnon, also asserted a claim for loss of consortium (Count IV). Upon Defendants' motion, the Court ...

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