Butterbaugh v. Chertoff

479 F.Supp.2d 485

Angel BUTTERBAUGH, as an individual, and Cindy Douglas, as an individual, Plaintiffs, v. Michael CHERTOFF, Secretary, United States Department of Homeland Security, Defendant.

Civil Action No. 03:06-18.

United States District Court, W.D. Pennsylvania.

March 20, 2007.

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Helen R. Kotler, Pittsburgh, PA, for Plaintiffs.

Megan E. Farrell, United States Attorney's Office, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION & ORDER

GIBSON, District Judge.

Now before the Court is the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Document No. 6) from Defendant Michael Chertoff, appearing as the Secretary of the United States Department of Homeland Security ("DHS" or "Defendant"), as well as the opposition thereto (Document No. 8) from Plaintiffs Angel Butterbaugh ("Butterbaugh") and Cindy Douglas ("Douglas", collectively "Plaintiffs") and Defendant's supporting reply (Document No. 11). Plaintiffs filed their Complaint on January 27, 2006, alleging gender discrimination, sexual harassment, and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and seeking back and front pay, reinstatement to employment, compensatory damages, attorney fees and costs, and all other relief permitted by law. Document No. 1, ¶¶ 196-208. Jurisdiction is proper under 28 U.S.C. § 1331; venue is appropriate pursuant to 28 U.S.C. § 1391(b). Defendant timely moved for summary judgment on July 31, 2006. Pursuant to the Parties' agreement, the Court stayed all discovery so that it could fully consider the issues presented in Defendant's dispositive motion. Document Nos. 15 & 17. For the following reasons, the Court will grant Defendant's Motion in part and deny the Motion in part.

I. BACKGROUND¹

Butterbaugh and Douglas were both terminated from their positions with United States Investigations Services, Inc. ("USIS") on March 8, 2005. USIS is a former government entity that became a private, employee-owned corporation on July 7, 1996. As a subcontractor for DHS, USIS provides administrative contract workers for the National Firearms Tactical Training. Unit ("NFTTU") in Altoona, Pennsylvania. That facility originally belonged to the Immigration and Naturalization Service but is now part of DHS and United States Immigration and Customs Enforcement ("ICE"). The NFTTU is involved with purchasing, testing, inventorying, and repairing firearms, as well as testing ICE agents in their use of firearms. Of approximately thirty employees working at NFTTU at the time of Plaintiffs' terminations, about half were USIS contract workers and half were directly employed by the federal government.

Butterbaugh first worked at NFTTU in late 1995 under the auspices of the Job Training Partnership Act and the Choices for Single Parents program. During that time she was supervised by government employee Mike Pallo. In April of 1996, Butterbaugh returned to NFTTU as an employee of the private subcontractor Maxima. Thereafter, although various firms obtained and lost contracts to support NFTTU, each hired the trained workers of its predecessor. Thus, no gap in personnel interfered with the work at NFTTU, even as the subcontractor changed several times. Under this system, Butterbaugh worked for several contractors, including Maxima, Telos, Wang Gentronics, and USATREX, but was always employed in the same capacity at NFTTU. In September 2000, USIS assumed the contract for NFTTU and immediately hired Butterbaugh.

As a USIS employee, Butterbaugh sometimes worked under the supervision of Robert Masters ("Masters"), a Training Specialist Armorer employed with DHS. In June 2002, USIS hired Douglas to work at the NFTTU and Douglas also occasionally worked under Masters. Butterbaugh and Douglas both had brief romantic relationships with Masters, in 1997 and 2003, respectively.

Contract workers at NFTTU are treated similarly to the government employees, even with regard to scheduling and leave., time. Furthermore, government employees train, oversee, and evaluate the daily work and duties of the independent contractors. During Plaintiffs' tenures at NFTTU, the only onsite USIS management was an employee with little or no control over their daily duties and performances. USIS would periodically warn its employees that they were required to do whatever the government workers asked. Concerned for retaining its contract, USIS also emphasized that in the event of a dispute, it would believe its customer — the federal government — over its own employees.

In their Complaint, Plaintiffs detail an extensive pattern of sexual harassment committed by federal employees at NFTTU — principally Masters, who repeatedly exposed himself, inappropriately touched female contract workers, and made several degrading comments. But terbaugh and Douglas, along with USIS employees Kristina Starr and Mary Ann Kiel, eventually filed complaints both to their USIS supervisor and directly to federal managers. On the recommendation of a counselor with USIS' Employee Assistance Program, Plaintiffs also reported Masters' conduct to the Altoona Police Department ("APD"). Plaintiffs never mentioned their past relationships with Masters to USIS or NFTTU employees, but did relay that information to the APD.

Plaintiffs believe these complaints negatively affected their treatment at NFTTU, that their jobs were unfairly made more difficult and subjected to greater scrutiny, and that DHS improperly influenced and obstructed the APD's investigation. They assert that DHS employee Carl Michaud, Assistant Director of NFTTU, expressed to USIS' program manager for the NFTTU site Tony Abrams a need to eliminate Plaintiffs' employment. On March 7, 2005,. Abrams visited the NFTTU site and, despite assuring all USIS employees that their jobs were secure, notified Butterbaugh and Douglas that he was terminating the two, ostensibly for falsifying information in their harassment complaints. Plaintiffs allege that they were terminated with the input, concurrence, and encouragement of managers within DHS, its predecessor department, or an agency within the DHS.

II. LEGAL STANDARD

When analyzing a motion under FED.R.CIV.P. 12(b)(6), the issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support the claim. Lake v. Arnold, 112 F.3d 682, 688 (3d Cir.1997); Nami v. Fauver,. 82 F.3d 63, 65 (3d Cir. 1996). A claim warrants dismissal only if it is clear that relief would not be available under any set of facts that could be proved consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). When a 12(b)(6) motion is granted, a district court should not dismiss the civil action but instead provide the claimant at least one opportunity to amend the defective complaint. However, when further amendment would be futile, an action or claim may be dismissed with prejudice and that plaintiff barred from raising it again. Heller v. Fulare, 371 F.Supp.2d 743, 746 (W.D.Pa.2005) (citing 5B CHARLES ALAN WRIGHT & ARTHUR R MILLER, FEDERAL PRACTICE & PROCEDURE § 1357 (3d ed.2004)).

In assessing the propriety, of dismissal, the Court must "accept as true all allegations in the complaint and all reasonable inferences, that can be drawn therefrom, and view them in the light Most favorable to the non-moving party." Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989); D.P. Enters, Inc. v. Bucks County Cmty. Coll., 725 F.2d 943 (3d Cir.1984). "In considering a rule 12(b)(6) motion, a court may consider an undisputably authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Steinhardt Group v. Citicorp, 126 F.3d 144, 145 (3d Cir.1997).

If the Court considers evidence outside of the pleadings, it may convert the motion to dismiss into a motion made under FED.R.CIV.P. 56. In re Rockefeller Ctr. Props. Sec. Litig., 184 F.3d 280, 287 (3d Cir.1999). As is the case here, when a motion to dismiss has been alternately framed as a motion for summary judgment and the nonmoving party has submitted evidence extraneous to its pleadings, the Court need not provide the parties `with express notice of conversion. Id. at 288-89; Hilfirty v. Shipman, 91 F.3d 573, 578-79 (3d Cir.1996).

Summary judgment is appropriate where "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56. "An issue of material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty. Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). Material factual disputes are those "that might affect the outcome of the suit under governing law." Id. On a motion for summary judgment, the moving party must first "identify[] those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To defeat the motion, "an adverse party may not rest upon the mere allegations or denials of his pleading." Id. at 321 n. 3, 106 S.Ct. 2548. Instead, it must use evidence to "set forth specific facts showing that there is a genuine issue for trial." Id. "The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513, 91 L.Ed.2d at 216.

III. ANALYSIS

Federal employees may file Title VII lawsuits against executive agencies. 42 U.S.C. 2000e-16. As with any other Title VII claimant, however, they must first exhaust prescribed administrative remedies before resorting to litigation. Antol v. Perry, 82 F.3d 1291, 1295-96 (3d Cir.1996)....