Mulhall v. Ashcroft

• Decision Date: 23 April 2002
• Docket Number: No. 00-6634.,00-6634.
• Citation: 287 F.3d 543
• Parties: Michael A. MULHALL, Plaintiff-Appellant, v. John ASHCROFT, in his official capacity as Attorney General, and the Federal Bureau of Investigation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 543

287 F.3d 543

Michael A. MULHALL, Plaintiff-Appellant, v. John ASHCROFT, in his official capacity as Attorney General, and the Federal Bureau of Investigation, Defendants-Appellees.

No. 00-6634.

United States Court of Appeals, Sixth Circuit.

Argued: March 5, 2002.

Decided and Filed: April 23, 2002.

James M. Bolus, Jr. (argued and briefed), Thomas E. Clay (briefed), Bolus & Ragland, Louisville, Kentucky, for Appellant.

Daniel Bensing (argued and briefed), Marleigh D. Dover (briefed), United States Department of Justice, Washington, D.C., for Appellees.

Before MOORE and COLE, Circuit Judges; TARNOW, District Judge.^*

OPINION

MOORE, Circuit Judge.

Plaintiff Michael A. Mulhall appeals the grant of summary judgment on his Title VII retaliation claim. On the merits, we find no error in the district court's judgment with respect to Defendant Attorney General John Ashcroft because Mulhall failed to produce either direct or circumstantial evidence from which a reasonable factfinder could infer that his supervisors knew of his protected activity. However, we must remand so the district court may amend its order in the present case. Although Mulhall sued both the FBI and then-Attorney General Janet Reno in her official capacity, the district court entered judgment for the FBI only. The district court clearly intended to issue a final order in granting summary judgment to the FBI, and thus its omission of the attorney general could be described as a merely technical error. But, under 42 U.S.C. § 2000e-16, the attorney general, rather than the FBI, was the only proper defendant in the present case. Thus, we VACATE the district court's judgment and REMAND to the district court so that it may amend its order.

I. BACKGROUND

Mulhall is a Jefferson County, Kentucky, police officer. He was assigned to the Louisville Fugitive Task Force ("LFTF"), from March 14, 1994 to March 15, 1995. The LFTF is a joint effort of the FBI, U.S. Marshals Service, the Louisville Police Department, and the Jefferson County Police Department ("JCPD"). The JCPD's decision to remove Mulhall from the LFTF and reassign him, effective March 16, 1995, is at the heart of Mulhall's Title VII retaliation case.

Mulhall's reassignment was prompted by a seemingly innocuous letter sent by FBI Supervisory Special Agent ("SSA") Hal Metcalfe to Mulhall's JCPD superior, Chief of Police Leon E. Jones, on February 27, 1995. See Joint Appendix ("J.A.") at 13 (Compl. ¶ 14). SSA Metcalfe was assisted in preparing this letter by Special Agent ("SA") Michael Ray. Metcalfe's letter requested that the JCPD review Mulhall's time and attendance records for the period March 24, 1994 through February 21, 1995, purportedly so that the JCPD and FBI could prepare for a financial audit of the LFTF's records by FBI headquarters. See J.A. at 139 (Metcalfe Letter). The JCPD's review of Mulhall's time sheets and attendance records led to a JCPD Internal Affairs ("IA") investigation into Mulhall's activities, see J.A. at 559 (Internal Affairs Rep.), and his removal from the LFTF. Thus, the letter from Metcalfe to Jones constitutes the challenged adverse employment action in the present case.

The specific charges against Mulhall related to his recording of overtime hours. As presented by SSA Metcalfe and SA Ray, Mulhall had been defrauding the government by claiming to have worked hours that he had not worked. See, e.g., J.A. at 554 (Zaboronak Dep.). The actual discrepancies in the time sheets — which are peripheral to the issues presented on this appeal — stemmed, apparently, from the differences in the rules for compensating overtime for the JCPD and FBI. Mulhall was eventually cleared of any wrongdoing by the IA investigation, and no criminal charges were ever brought against him.

The parties to the present case do not dispute, on appeal, that the Metcalfe letter, which resulted in Mulhall's reassignment, constitutes an adverse action. Nor do they dispute, on appeal, that Mulhall was engaged in a protected activity prior to the adverse action. Mulhall was named as a witness in former SA Jeanne James Henderson's EEO complaint against another FBI agent. See J.A. at 219 (Henderson EEO Compl.), 297 (Henderson Aff.). This would constitute a protected activity under 42 U.S.C. § 2000e-3(a), which prohibits discrimination for "assist[ing] or participat[ing] in any manner in an investigation, proceeding, or hearing under" Title VII.

Instead, the parties dispute whether SSA Metcalfe and SA Ray knew that Mulhall was listed as a witness by Henderson at the time that they drafted and sent the letter to Mulhall's JCPD supervisor. For their part, Metcalfe and Ray unequivocally deny any knowledge of that crucial fact on or before February 27, 1995. The facts underlying these denials are as follows. On or about February 21, 1995, SA David Beyer, chief counsel at the Louisville FBI office, received by mail a package that contained Henderson's fifty-eight-page sworn statement. Mulhall's name was the last name on the list of witnesses in the sworn statement — it appeared on page fifty-eight, the last page. The package was addressed to Beyer but indicated, in a notation written on the envelope, that Beyer should deliver the package to SA Russ Pulley, the EEO investigator assigned to Henderson's complaint. Beyer placed the package in his office safe; he claims not to have opened the package at the time or to have read its contents. See J.A. at 133-34 (Beyer Dep.). On February 24, Pulley contacted Beyer, told him that the package contained Henderson's sworn statement, and requested that Beyer make a copy of it and send the copy to Henderson's attorney. Beyer complied with Pulley's request by opening the package, copying the statement using a photocopier with an automatic feeder, and delivering the copy, in a sealed envelope, to the mailroom of the FBI office. He claims not to have read the statement while copying it, and thus he claims that he was not aware that Mulhall's name appeared on the witness list on the last page of the statement. See J.A. at 134-35 (Beyer Dep.).

On March 2, 1995, Henderson's attorney contacted Beyer to inform him that the copy of Henderson's statement had not arrived. Beyer followed up with the mailroom employee and discovered that the statement, still in its sealed envelope, was still in the mailroom employee's mailbox. See J.A. at 135. Upon making this discovery, Beyer composed a memorandum regarding the mishandling of the package because, he claims, he was concerned that Henderson would see this as an opportunity for additional litigation against the FBI. See J.A. at 129-30 (Beyer Memo.).

Mulhall's theory of the case is that Metcalfe and Ray discovered that Mulhall was listed as a witness by Henderson sometime between the arrival of the Pulley package in the Louisville FBI office on February 21, 1995, and the mailing of the letter to Mulhall's JCPD superior on February 27, 1995. During that time, the Henderson statement was in Beyer's possession, locked in his personal safe, and, between February 24 and March 2 or 3, the copy of the statement made by Beyer was in the mailroom employee's unsecured mailbox in the mailroom. Opposing the defendants' motion for summary judgment, Mulhall argued that the facts surrounding the delivery of the Henderson statement to the Louisville FBI office and its mishandling during the key period of time give rise to the inference that Metcalfe and Ray discovered that Mulhall was listed as a witness by Henderson prior to the drafting and sending of the letter to Mulhall's JCPD superior.

Mulhall has developed three distinct theories to explain how Metcalfe and Ray learned that he was listed as a witness in Henderson's statement and thus why they drafted and sent the letter. First, Mulhall asserts that Beyer could have read the statement, either after receipt or while photocopying it, and then disseminated the relevant information to Metcalfe and Ray. See J.A. at 247. Second, Mulhall speculates that either Metcalfe or Ray could have opened the sealed envelope in the mailroom employee's mailbox, read the statement, and then resealed the envelope. See J.A. at 248. Mulhall asserts that the practice of opening mail addressed to others (called "bagging") was common in the Louisville FBI office. See J.A. at 248. He also claims that Metcalfe and Ray were trained to open mail and reseal envelopes without being detected. See J.A. at 248.¹ Third, Mulhall suggests that the mailroom at the Louisville FBI office would have opened the package, which was addressed to SA Pulley, an "unknown" agent, upon delivery, and that Metcalfe and Ray discovered its contents as a result. See J.A. at 247; Appellant's Br. at 38.

In offering these theories, Mulhall points to the unusual mailing of the package from Washington, D.C., to the Louisville FBI office — Pulley, the EEO investigator, worked out of the Memphis office, see J.A. at 232-33 — and attempts to undermine the credibility of Beyer, Metcalfe, and Ray. He attacks Beyer's credibility by pointing to minor inconsistencies between the March 3, 1995 memo composed by Beyer and Beyer's later deposition testimony. See J.A. at 246; see also Appellant's Br. at 39-41 (listing eight inconsistencies). He attacks the credibility of Metcalfe and Ray by pointing to Ray's history of lying and falsifying documents, see J.A. at 249, and Metcalfe's history of retaliating in Title VII cases, see J.A. at 250.

Mulhall filed this action against the FBI and then-Attorney General Reno on March 6, 1998, after having exhausted his administrative remedies. The defendants moved to dismiss the case or, in the alternative, for summary judgment, prior to discovery, claiming, inter alia, that Mulhall had failed to establish a prima facie case of Title VII retaliation. The district court, treating this motion as one for summary judgment, denied the motion, holding that "the circumstances surrounding the initiation of the...