Barry v. Haaland

• Decision Date: 29 September 2022
• Docket Number: 19-cv-3380 (DLF)
• Parties: CHRISTOPHER S. BARRY, Plaintiff, v. DEBRA HAALAND, Secretary, U.S. Department of the Interior, Defendant. [1]
• Court: U.S. District Court — District of Columbia

CHRISTOPHER S. BARRY, Plaintiff,
v.
DEBRA HAALAND, Secretary, U.S. Department of the Interior, Defendant. ^[1]

No. 19-cv-3380 (DLF)

United States District Court, District of Columbia

September 29, 2022

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, UNITED STATES DISTRICT JUDGE

Christopher S. Barry brings this action against his former employer, the Secretary of the Department of the Interior (DOI), for violating the antiretaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a). Barry alleges that the Secretary provided a negative job reference, resulting in the loss of a conditional job offer, in retaliation for Barry's complaint that he had been subject to a hostile work environment at DOI. Before the Court is the Secretary's Motion for Summary Judgment, Dkt. 50. For the reasons discussed below, the Court will grant the motion.

I. BACKGROUND^[2]

A. Employment at the Department of Interior and initial EEO activity

From September 2011 to June 2012, Barry was employed as the Director of the National Offshore Training and Learning Center (Learning Center) at DOI. Def.'s Stmt. of Material Facts ¶ 2.

1

The Learning Center fell within the Office of Offshore Regulatory Programs (Offshore Programs), led by Doug Morris and Bob Middleton, which in turn was in the Bureau of Safety and Environmental Enforcement (the Bureau). Id. ¶ 7; Def.'s Mem. Ex. 7 (Final Agency Decision on 2012 Complaint) at 1, Dkt. 50-10.

On May 7, 2012, one of Barry's subordinates complained to Morris that Barry was creating a hostile work environment. Def.'s Stmt. of Material Facts ¶ 6; see Def.'s Mem. Ex. 6 (Memo of Allegations), Dkt. 50-9. According to that employee, Barry “made remarks with racial and perceived hostile overtones,” “used abusive language with [another] subordinate” in the presence of others, and made “remarks [inappropriately] derogatory of [Bureau] management.” Memo of Allegations at 1. Middleton investigated the complaint, and he concluded on July 20, 2012 that Barry had “show[n] inappropriate behavior as a senior manager” and “did, in fact, create a hostile work environment as perceived by [his subordinate].” Id. at 3. His conclusion was based on corroboration from another employee as to at least one of Barry's alleged racial comments. Id.

While that investigation was ongoing, on May 10, 2012, Morris and Middleton conducted Barry's mid-year review. Def.'s Stmt. of Material Facts ¶ 16. Middleton documented that discussion in an email to Barry, and he noted that Barry had failed to “provide[] sufficient management oversight to effectively improve progress” on Bureau projects and, when “significant hurdles” arose, had not kept his supervisors “sufficiently appraised” or “proposed any viable solutions.” Def.'s Mem. Ex. 2 (Mid-Year Review Email) at 2, Dkt. 50-5. Middleton also described

2

Barry's “general supervision and management” performance as “unsatisfactory” because, among other things, he “failed to motivate subordinates,” he “verbally berated a subordinate and used inappropriate language,” and his conduct had resulted in a subordinate complaining of a hostile work environment. Id. at 2-3. Because of their concerns about Barry's management style, Middleton and Morris offered Barry a non-managerial assignment at the same pay and grade, which Barry refused. Id. at 3. Barry responded by email that he found his poor review “disappointing and surprising,” and he disputed that he was responsible for creating a hostile work environment in the Learning Center. Id. at 1. Later that day, Barry filed an informal EEO complaint alleging that he was being subjected to a hostile work environment within Offshore Programs. Def.'s Mem. Ex. 4 (2012 Informal EEO Complaint) at 3, Dkt. 50-7.

The following day, on Friday, May 11, 2012, Morris notified Barry by email that Barry would begin a detail at the Main Interior Building effective Monday, “pending the results of an administrative inquiry into workplace concerns within [Offshore Programs] and [the Learning Center].” Id. Ex. 3 (Detail Email), Dkt. 50-6. On June 22, 2012, Barry “decided to resign effective immediately,” not voluntarily but “due to the hostile working environment created by” others.^[3] Id. Ex. 5 (Resignation Email) at 1-2, Dkt. 50-8.

Also on June 22, 2012, Barry pursued a formal EEO complaint, claiming sex and sexual orientation discrimination and reprisal for EEO activity when he was harassed, subjected to a hostile work environment, given a forced detail, and constructively discharged. Final Agency Decision on 2012 Complaint at 1-2. In September 2013, DOI issued a final decision on Barry's

3

formal EEO complaint, concluding that he had not been subjected to discrimination or harassment on the basis of sex, sexual orientation, or protected EEO activity. Id. at 21.^[4]

B. Conditional offer of employment at the Department of Homeland Security

In June 2014, the Department of Homeland Security (DHS) extended Barry a conditional offer of employment as a Supervisory Instructional Systems Training Manager. Def.'s Stmt. of Material Facts ¶ 4. The offer was conditional on successful completion of a background check. Id. Barry submitted a Standard Form 86 Questionnaire for National Security Positions, which required him to, among other things, disclose his prior employment and whether he left under unfavorable conditions. Id. ¶ 32. Investigators from the Office of Personnel Management (OPM) conducted the background check. Id. ¶ 23.

In conducting the background check, OPM investigators interviewed many of Barry's prior supervisors, including Morris. Id. ¶¶ 24, 26, 28, 29. When the investigator first contacted Morris on October 21, 2014, Morris refused to comment due to the then-ongoing EEOC investigation. Id. ¶ 29 (citing Def.'s Mem. Ex. 8 (OPM Investigation Report) at 35, Dkt. 50-11). Morris then consulted DOI lawyers and subsequently “stated [his] willingness to participate” in the interview. OPM Investigation Report at 36. On November 4, 2014, Morris answered the OPM investigator's questions and noted, among other things, Barry's “unsatisfactory midyear performance evaluation . . . due to his conduct”; “allegations of misconduct submitted by a member of the staff” that included “racial slurs”; “issues with being aggressive”; “effort into finding loopholes to rules”;

4

and “chastise[ment]” of-including “screaming at”-the other subordinate who had “voluntarily spoke[n] to investigating officials regarding [Barry's] racial slurs.” Id. at 36-37. Middleton was not interviewed. Def.'s Stmt. of Material Facts ¶ 36.

The OPM investigator also interviewed two managers at the Department of Treasury, where Barry briefly worked after he resigned from DOI, and one at FEMA, where Barry worked prior to DOI. See id. ¶¶ 1, 3. The managers at Treasury likewise reported Barry's “issues pertaining to his professional reputation, honesty and integrity, judgment and discretion, [and] following of rules”; “disregard[ for] orders and directives”; “inability to compromise”; “fight or flight mentality”; “personality conflict issues”; multiple “threat[s] to resign”; and “immature and irresponsible” actions, among other things. OPM Investigation Report at 24-25, 29-30. Neither manager recommended Barry. Id. at 24, 29. The FEMA supervisor reported that Barry had accused another supervisor of making “sexual innuendos and harassing verbal undertones” about Barry's homosexuality. Id. at 39.

After the OPM investigation concluded, on January 13, 2015, DHS sent Barry an official letter stating that the investigation “raise[d] a concern regarding [his] suitability for employment” with DHS. Def.'s Mem. Ex. 9 (DHS Notice of Proposed Action) at 2, Dkt. 50-12. It found that Barry “failed to disclose” some of his employment history and that, although Barry “denied [he] left employments under unfavorable conditions,” employment checks at Treasury, FEMA, and DOI revealed otherwise. Id. at 1. It also cited evidence of poor work ethic and interpersonal conflicts at Treasury, DOI, and FEMA. Id. at 1-2. In summary, it stated, Barry's “personal conduct in the workplace was seen as untrustworthy, unreliable, and/or an unwillingness [sic] to comply with rules and regulations” at all three agencies. Id. at 2.

5

The Notice allowed Barry to respond with comments, explanations, or evidence. Id. Barry did so on January 19, 2015, stating that the “alleged problems at [Treasury]” were “baseless” and those at FEMA and DOI were “clear retaliation” for two different EEO complaints. See Barry's Response to DHS Notice at 1-3. Furthermore, Barry stated that while at DOI he was “never negatively counseled or coached for any reason.” Id. at 2. Unpersuaded, DHS withdrew its conditional offer of employment on March 30, 2015, explaining that the background check revealed “certain derogatory information . . . adversely impacting our determination as to your suitability for employment for the . . . position at DHS.” Def.'s Mem. Ex. 13 (DHS Withdrawal Letter) at 1, Dkt. 50-16.

C. Subsequent EEOC complaints

Shortly thereafter, Barry contacted an EEO counselor to report that Morris, Middleton, and another DOI supervisor had made “false and inflammatory comments” about him that resulted in him “not [being] eligible for Federal employment.” Id. Ex. 11 (DOI Notice of Right to File 2015 Complaint) at 1, Dkt. 50-14. He filed a formal EEO complaint on February 10, 2015, claiming that those “negative comments,” which resulted in the denial of a “clearance for a GS-15 position,” were retaliation against him for his previous and current EEO activity.^[5] Id. Ex. 14 (DOI Letter Acknowledging 2015 Complaint) at 1, Dkt. 50-17.

6

In the subsequent EEO investigation, Morris confirmed that he had talked to an OPM investigator conducting Barry's background check. Id. Ex. 17 (Transcript of Morris Interview) at 7-8, Dkt. 50-20. He stated that he had “sought...