Date: 04-23-2002

Case Style: Michael A. Mulhall v. John Ashcroft, et al.

Case Number: 00-6634

Judge: Karen Nelson Moore

Court: United States Court of Appeals for the Sixth Circuit

Plaintiff's Attorney: James M. Bolus, Jr. of Bolus & Ragland, Louisville, Kentucky, for Appellant.

Defendant's Attorney: Daniel Bensing, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.

Description: 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 investigation and Mulhall's removal from the Task Force, when viewed as a whole, raise[] an inference of retaliation by the FBI sufficient to establish a prima facie case of causal connection." J.A. at 65. The district court noted in a footnote that its findings in this respect were "made under the lower burden of proof required to sustain a prima facie case, rather than that which is required to win a judgment on the ultimate issue of discrimination." J.A. at 65 n.2. In its opinion, the district court discussed Mulhall's theory that Beyer had communicated the fact that Mulhall was listed as a witness by Henderson to Metcalfe and Ray, noting the FBI agents' unequivocal denials on this front, but concluded that Mulhall had presented sufficient circumstantial evidence of a causal connection between the protected activity and the adverse action to survive summary judgment.

In this opinion, issued on April 16, 1999, the district court did not treat the issue of the FBI agents' knowledge as a separate element of Mulhall's prima facie case. The FBI(2) renewed its motion for summary judgment at the conclusion of discovery. One of the main thrusts of the FBI's renewed motion for summary judgment was that Mulhall could not establish a prima facie case of retaliation because he could not "demonstrate that the FBI knew that his name was listed as a witness on . . . Henderson's signed sworn statement." J.A. at 71. To support its argument that such knowledge was a separate element of Mulhall's prima facie case, the FBI cited our decision in Fenton v. HiSAN, Inc., 174 F.3d 827, 831 (6th Cir. 1999). The FBI argued:

After extensive discovery, plaintiff can point to no evidence whatsoever that SSA Metcalfe knew that plaintiff was listed as a witness on Ms. Henderson's statement at the time he sent his February 27, 1995 letter to the JCPD.

It appears that plaintiff's only "evidence" on the employer knowledge prong of his prima facie case is the closeness in time of two events: the receipt in the FBI Louisville office of . . . Henderson's Signed Sworn statement . . . on February 21 or 22, 1995, and the transmittal of a letter from [Metcalfe] to plaintiff's employer on February 27, 1995, requesting a review of his time sheets. . . .

However this is mere speculation, as plaintiff conceded in his deposition, other than the closeness in time between the two events, he has no evidence that SSA Metcalfe knew that he was listed by Ms. Henderson as a witness.

J.A. at 81-82.

Mulhall responded(3) to the FBI's renewed motion for summary judgment by pointing to the district court's prior finding that he had established a prima facie case of Title VII retaliation. See J.A. at 228 (Response). Mulhall also claimed that his prima facie case had been "strengthened through discovery," J.A. at 230, because of the facts regarding the mishandling of the Pulley package and credibility issues that had come to light. In discussing the applicable law, however, Mulhall's response failed to note the distinction drawn in Fenton and other cases between (1) demonstrating that a relevant decision-maker knew of the plaintiff's protected activity and (2) establishing a causal link between the protected activity and the adverse action through circumstantial evidence. Thus, Mulhall argued that facts uncovered through discovery further supported the circumstantial evidence that he had already presented with respect to the causal connection, see J.A. at 245-50, and that the FBI had failed to rebut his prima facie case, see J.A. at 250-52.

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Click the case caption above for the full text of the Court's opinion.

Outcome: For the foregoing reasons, we VACATE the judgment of the district court and REMAND so that the district court may amend its order to grant summary judgment to Attorney General Ashcroft and to dismiss the claims against the FBI.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None