UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) SHERRY L . MUSI CK, ) ) Plaintiff, ) ) v. ) Civil Action No. 02-1801 ( PL F) ) KEN SALAZ AR, Secre tary , ) U.S. Depar

tment of the Interior, ) ) Def endant. )

1 ____________________________________)

OPI NI ON This matter is befor e the Court on def endant’ s motion for rec onsideration of the Court’s October

24, 2007 Orde r deny

ing de fenda

nt’s motion for summary

judgme nt. Upon consideration of the parties’ paper s, the rele vant leg al authorities, and the entire r ecor d in this

case , the Court will gr ant def endant’ s motion for rec onsideration, will vaca te the Court’s Or der denying de fenda

nt’s motion for summary

judgme nt, and will gr ant def endant’ s motion for summary judgme nt on the only

count of plaintiff’ s complaint. 2

The Court has substituted as the de fenda nt Ken Salazar, the curr ent Secr etar y of 1 the Interior, f

or for mer Sec reta

ry Dirk Ke mpthorne under

Rule 25(d) of the Fe dera l Rules of Civil Procedur e.

The pa pers r eviewe d in connec tion with the pending motion include: plaintiff’ s 2 complaint (“Compl.”) [Dkt. No. 1]; defendant’ s motion for summary judgme nt (“MSJ ”) a

nd statement of mate rial fa cts to which there is no ge nuine dispute (“D ef. SMF” ) [Dkt. No. 37] ; plaintiff’s opposition to defenda nt’s motion for summary

judgme nt (“MSJ Opp.”) and stateme nt of g enuine issues in dispute (“ Pl. S MF” ) [Dkt. No. 40] ; defe ndant’s re ply to plaintiff’s opposition to defe ndant’s motion for summary judgme nt (“MSJ Reply ”) [Dkt. No. 43]; defendant’ s motion for r econside ration (“ Recons. Mot.”) [Dkt. No. 59]; plainti ff’ s opposition t o defe ndant’s motion for r econside ration (“ Recons. Opp.” ) [Dkt. No. 64] ; and def endant’ s reply

in further support of his moti on for r econside ration (“ Recons. Reply”) [Dkt. No. 68].I . BA CKGROUND Plaintiff Sherry

L . Musick has broug ht this l awsuit ag ainst the Secre tary of the United States Depa

rtment of the Interior in his offic ial capa city , alleg ing that the Depa rtment of the Interior r etaliated a g ainst her in violation of Title VI Iof the Civil Ri g hts Act of 1964, as amende d, 42 U.S.C. § 2000e et seq . Ms. Musick alleg es that she wa s removed f rom fede ral service for e ng ag ing in a ctivity protec ted by

Title VI I , that is, for “f

il[ ling] numerous complaints of discrimination ag ainst” the De partment. Compl. at 1. The De partment see s it differe ntly : it contends that Ms. Musick was dismissed as an e mploy ee be cause she made statements of violence thr eate ning va

rious Depa

rtment offic ials. The history

of this case beg ins more than 22 y ear s ag o. Ms. Musick was hired by the United States B urea

u of Mines, a f

ormer division of the De partment of the I nterior, in 1990. See MSJ at 2; see a lso Def. SMF ¶ 1. She rema ined there for six y ear s until her transfe r to the United States Geolog ical Survey (“U SGS”), another

division of the Depar

tment of the Interior, on J anuar y 26, 1996. Def

. SMF ¶ 7. Ms. Musick’s time at I nterior include d many employ ment disputes. The Depa rtment alleg es that on seve ral oc casions Ms. Musick display ed “ina ppropriate , disruptive behavior towards he r super

visors.” MSJ at 2. The D epar tment asserts that in April of 1994 Ms. Musick rec eived a

letter of r eprimand f

or “r ude and disruptive be havior (yelling) [.] ” De f. SMF ¶ 2. One month later, Ms. Musick was suspende d for f ive day s without pay

for “ rude a

nd disruptive behavior ” and “ false, ma licious, and hig hly irresponsible state ments,” id. ¶ 4; two months after that suspension, Ms. Musi ck wa s ag ain suspended, this time for 10 da y s, “for rude

2and disruptive beha vior and for

false, ma licious, and hig hly irresponsible state ments ag ainst her supervisor.” I d. ¶ 5.

Ms. Musick had her

own share of complaints about the Interior De partment. She filed numerous EE O complaints ag ainst various De partment off icials, alleg ing se x discrimination and sexual hara ssment. See Compl. ¶¶ 8-9. Ms. Musick claims that her EEO filing s beca

me so prolific that, at its hig h point, her filing rate aver ag ed one c omplaint per month, see MSJ Opp. at 4, eve ntually

culminating in a

separ ate law suit before another judge of this Court, filed on J anuar y 21, 1997. See id. at 3; see also g ener ally Musick v. Norton, Civil Action No. 97-0143 (D.D.C.). Ms. Musick voluntarily dismiss ed that suit with prejudice on Septe mber 24, 2002. 3 See Musick v. Nor

ton, Civi l Action No. 97-0143, Or der at 1 (D.D.C. Sep. 24, 2002). The e vents g iving r ise to this case a rose while that prior lawsuit was pe nding. O n May 1, 2001, Ms. Musick, while off- duty , encounte red B arba ra Mosgrave , a re tired Interior Depa rtment employ ee, w aiting in line at the Merr ifield Post Office in Vir g inia. See MSJ at 3; Def . SMF ¶ 11; MSJ Opp. at 4-5. The ir meetingwas a chanc e enc ounter, a

nd it is undi sputed that Ms. Musick and Ms. Mosgr ave ha d a conve rsation. See De f. SMF ¶ 11; MSJ Opp. at 4; see also Recons. Mot. at 4 n.2. The substance of the conve rsation is disputed: Ms. Mosgra ve say s that Ms. Musick threate ned violence ag ainst various De partment e mploy ees; Ms. Musick denie s that she made any

such statements. Compare Def . SMF ¶¶ 11- 15, with MSJ Opp. at 4-5. Specifica lly , Ms. Mosgr ave sa y s that Ms. Musick made threatening statements of violence a g ainst her f

irst-line supervisor, K eith Har ris, and at lea st two other Depa rtment of

The re cord sug g ests — and Ms. Musick does not dispute — that she did not 3 submit an EEO complaint from 1999 until her ter mination related to this case in 2001. 3I nterior e mploy ees. See Def . SMF ¶ 14; see also MSJ , Ex . 22 at 8-9, Af fidavit of B arba

ra Mosgr ave ( “Mosg rave Aff.” ). Acc ordingto Ms. Mosgra ve, Ms. Musick said that she wa nted to 4 see the se employ ees “ blown up and in their g rave .” Mosg rave Aff. at 8. As Ms. Mosgra ve descr ibes it, Ms. Musi ck wa s ag itated when she made this statement, and the n repe ated this statement over

ten times. See id. at 12. Ms. Mosg rave was a larmed by Ms. Musick’s statements, and, at the e nd of the c onversation, Ms. Mosgrave ca lled her f ormer supe rvisor at the Depa rtment, Michae l Kaas, to infor m him about what Ms. Musick had said. See D ef. SMF ¶ 15; Mosgr ave A ff. at 14.

Mr. Kaa s then contac ted Ms. Musick’s first-line supe rvisor, Mr. Ha rris, and informed him about the a lleg ed stateme nts of violence. See Def . SMF ¶ 16. Mr. Ha

rris re ported the incident to his first-line super visor — and Ms. Musick’s sec ond-line super visor — J ohn DeYoung . See id. ¶ 17; see also MSJ , Ex . 25 at 9, Aff idavit of J ohn DeYoung(“D eYoung Aff.” ). Interior De partment off icials then conta cted Ms. Mosg rave to learn more about Ms. Musick’s alleg ed stateme nts, see, e.g ., Def . SMF ¶¶ 21, 23, a

nd Depa rtment offic ials ag ree d that Ms. Musick should be place d on administrative leave pendingan investig ation of the incide nt; Ms. Musick was plac ed on administrative lea ve on May

3, 2001. Def

. SMF ¶ 22; see DeYoung Aff. at 9-10. Mr. DeY oung conducte d a pre liminary investigation into M s. Musick’s alleg ed threatening statements. See De f. Stmt. ¶¶ 23-31. As par t of his investigation, Mr. DeYoung met The pa rties re fer to the transcr ipts of the interviews c onducted unde r oath during 4 the Equal Employ

ment Opportunity

investigation of Ms. Musick’s termination as “a ffidavits.” Although the se docume nts do not resemble ty pical af fidavits, and ar e more akin to depositions, the Court will refe r to these doc uments as af fidavits for pur

poses of c onsistency

with the parties’ paper s. 4with Ms. Mosgra ve and a lso obtained a stateme nt from Mr. Ka as about the initial conve rsation he had w ith Ms. Mosgrave. I d. ¶¶ 23, 26. Mr. D eYoungalso obtained stateme nts from those who wer e the subjec t of Ms. Musick’s alleg ed thre ats. I d. ¶¶ 24- 25. The e mploy ees that Ms. Musick alleg edly

threatened sa id that, as a re sult of Ms. Musick’s statements, they felt unsaf

e in the workpla ce. I d. ¶¶ 27- 29.

Ms. Musick asserts in her paper s — but without a supporting a ffidavit or decla ration — that Mr. De Youngdid not interview or other wise talk with her. MSJ Opp. at 8 (citing DeYoungAff. a

t 55). Mr. De Youngacknow ledg es that he did not for mally interview Ms. Musick, but he asser

ts that he did have a

brief disc ussion with her afte r plac ing he r on administrative leave , duringwhich ther e “c erta inly was a n exchang e of vie ws wher e [he] tol d her what the situation was, she rec ounted to [hi m] , and [they ] had a brief discussion on the issue.” DeYoungAff. at 54; see id. at 55. Consequently , Ms. Musick’s unsupported asse rtion notwithstanding, it is undisputed that Mr. DeYoung did in fac t talk with Ms. Musi ck about the alleg ed incident. See DeYoungAff. a t 54-55. As Mr. De Youngstates, duringthis conversation Ms. Musick denied that she ha d made a ny statements of violenc e. See id.; see also MSJ , Ex . 24 at 9, Aff idavit of Cathy

Skelton (“Skelton Aff.” ) (“ Duringthe issuance of the a dminist rative leave letter, [Ms. Musick] indicated that she would never have ma de comments of tha t nature [.] ”). I n J une 2001, af ter c onsulting the De partment’s Workplac e Violenc e Ha ndbook and other policies g overningthe discipline of employ ees, Mr . DeYoungproposed that termination was the pr oper c ourse of action: Ms. Musick’s misconduct, Mr. De Youngconclude d, was suff iciently serious in his judgment to initiate termination proc eeding s. See De f. SMF

5¶¶ 31- 32. Mr. DeY oung issued Ms. Musick a letter of proposed ter

mination on J une 13, 2001. See id. ¶ 31. Mr. DeY oung ’s proposal to ter minate Ms. Musick was sent to Dr . David Russ, Ms. Musick’s third-line supervisor, f or a f inal decision on the matter . See De f. SMF ¶ 34. D r. Russ then conducted his own investig ation. See id. ¶¶ 34, 35, 37. I n addition to reviewingMr. DeYoung ’s finding s, Dr. Russ conducte d separ ate inter views of Ms. Mosg rave , Mr. DeY oung , and Mr. Ka as. See id. ¶¶

34-35; see a lso MSJ , Ex . 26 at 10-15, Af fidavit of Dr . David Russ (“Russ Aff

.”). A nd Dr. Russ considere d statements g iven by the employ ees that Ms. Musick alleg edly threatened. See Russ Aff. at 12-15. Dr. Russ asser

ts that on September 4, 2001 he me t with both Ms. M usick and he r attorney at the time, Solaman L ippman, and that he g ave Ms. Musick a n opportunity

to speak on her own behalf

. See Russ Aff. at 14-15. Althoug h Ms. Musick has claimed that no Depar tment officia ls talked to her dur ing the investiga tion of the May

1, 2001 incident, see MSJ Opp. at 8; MSJ , Ex . 23 at 40-41, Af fidavit of Sherr

y Musick (“Musick A ff” ) — pre sumably including D r. Russ — she has not been c onsistent on the matter. See MSJ , Ex . 30 at 110, Deposition of Sherr y Musick, Mar. 10, 2004 ( “3/10/04 Musick Dep.” ) (“ Italked to Dave Russ on S eptember 5th of 2001. . . . [He] asked me if I ’d made violent threats ag ainst my supervisors at USGS and Isaid no.”); MSJ , Ex . 31 at 13, Deposition of Sherr y Musick, J uly

7, 2004 (“7/4/04 Musick De p.”) (“Q : Do y ou rec all meetingwith Mr. [si c] Ross? A: Yes. Q: When did y ou meet with Mr. [sic] Ross? A: Ibelieve it wa s on September 5th of 2001.” ); 7/4/10 Musick Dep. at 36; see also supra at 5 (discussingMs. Musick’s brief ta lk with Mr. DeYoung ). More over, in he r most rec ent filing, Ms. Musick e x pressly acknow ledg es that she a

nd Mr. L ippman in fac t did attend a hea ring

6conducte d by Dr. Russ, and that she w as interview ed at that he aring . See Rec ons. Opp. at 29 (“Sept. 2001, Mr. L ippman and Plaintiff attende d a hea ring conducte d by

Dave Russ and Cathy Skelton . . . . Pl aintiff wa s interviewe d in the hear ing.” ); see a lso id. at 36 (Ms. Musick, providing a timeline of e vents, stating: “ September 5, 2011, Plaintiff’s me eting with Dave Russ at USGS.”). F urthermor e, it is undisputed that prior to her ter mination Ms. Musi ck and he r attorney provided Dr . Russ with a written response in support of their position that she should not be terminate d beca

use she did not make a

ny threatening statements, and that Dr . Russ revie wed a

nd considere d that written re sponse. See De f. SMF ¶ 34; Russ Aff. at 10-11, 14-16; Musick Aff. at 41.

Ultimately , Dr. Russ deter mined that Ms. Mosgr ave’ s repor t of the May

1, 2001 incident was c redible. See Russ Aff. at 19. That determination wa s based, in par t, on Ms. Mosgr ave’ s “sincer e, cr edible pre sentation,” id. at 45, he r “c lear ” and “ consistent” desc ription of the eve nts in question, id. at 46, and Dr. Russ’ conc lusion that Ms. Mos g rave did not appear to have a ny rea son for re portingMs. Musick’s statements other tha n her since re c oncer

n about the nature of Ms. Musick’s statements. I d. at 45-47. And ha ving r eviewe d all of the e vidence of his investigation, Dr. Russ determined that Ms. Musick did make the statements of violenc e, and he decide d that remova l was the a ppropriate sanction. See D ef. SMF ¶ ¶ 37-38. He wrote a five-pa g e, sing le-spac ed letter to Ms. Musick summ arizing his investig ation and conc lusion and terminating Ms. Musick’s employ ment with the Depa

rtment eff ective D ece mber 7, 2001. See MSJ , Ex . 19 at 4, L etter f rom D. Russ to S. M usick, Dec . 5, 2001. I n response , Ms. Musick filed a for mal complaint of discrimination with the I nterior De partment’s O ffice of Equal Employ ment Opportunity

about her remova l from the

7Depa

rtment. Compl. ¶ 2. The EEO of fice conducte d an investig ation and then issued a final ag ency decision on August 14, 2002, id., concludingthat Ms. Musick’s remova l was not the result of discr imination or reprisal. See Def . SMF ¶ 41. This lawsuit followed. Ms. Musick filed her c omplaint with thi s Court on September 11, 2002, alleg ing one count of

reta liation under Title VI I . See Compl. ¶¶ 22-26. Af ter settlement ne g otiations failed a nd discovery

beg an, the De partment moved f or summary

judgme nt. The Court denied the Depa rtment’s motion by

Orde r date d October

24, 2007, finding that there wer e g enuine issues of materia l fac t in disput e, and that the Depa rtment was not entitled to judg ment as a ma tter of law

. See Or der at 1, Oct. 24, 2007 [Dkt. No. 44] . Soon therea fter, the Court refe rre d the par ties to mediation. Mediation failed, a nd the Court direc ted the par ties to prepar e for

trial, set to beg in on May

24, 2010. The pa

rties then submitted trial briefs, pr etrial stateme nts, and proposed jury instructions. But just before the beg inning of trial, on May

14, 2010, Ms. Musick’s counsel reque sted that the Court postpone the pre trial and trial dates bec ause he had bee n selec ted for a jury in a murder

trial in the Superior Court of the D istrict of Columbia. See Consent Mot. for Enlarg ement of Time a

t 1, May 14, 2010 [Dkt. No. 57] . The De partment did not oppose the motion, and the Court gr anted it on May 18, 2010, vacating the pr ior pretr ial and trial dates and setting tria l for De cembe r 2010.

The followingday , on May 19, 2010, the Depa

rtment moved for

rec onsideration of the Court’s Or der de nying the Depa rtment’s motion for summary judgme nt. Ms. Musick failed to re spond. Almost two mont hs later, on July 12, 2010, the Depa

rtment asked the Court to

8treat its m otion for re consideration as conce ded. The Court then order ed Ms. Musick to show

cause by Aug ust 18, 2010 why

the Depa rtment’s motions should not be g rante d. On August 18, 2010, counsel for Ms. Musick f iled a re sponse, asser

ting that he had bee n unable to obtain Ms. Musick’s coope ration and c ollaboration in order to properly respond to the De partment’s two motions. See Response to Or der to Show Cause at 1, Aug . 18, 2010 [Dkt. No. 61] . Ms. Musick’s counsel fur ther e x plained: Plaintiff was provided w ith a copy of the Motion for Reconsider ation and she indicated that she would discuss it with counsel but there has bee n no communication from Plaintiff since that time. L ackingthat communication counse l is unable to take a position on t he pendingmotion for rec onsideration and on the pendingmotion to “consider as c oncede d”. Inasmuch a s the Plaintiff resides in Wichita, Kansas a nd has bee n ill in t he past counsel ha s no knowledg e of he r cur rent phy sical condition or the rea sons for which she is not communicating but suspec ts it m ay be a phy sical infirmity . Acc ording ly counsel urg es the Court to consider that the Plaintiff may [be] too ill t o adequately participate in the prosec ution of her c ause. I d. at 1-2. Despite Ms. Musick’s fa ilure to respond to the D epar tment’s motions by

Aug ust 18, 2010, the Court provided Ms. Musick with another opportunity

to prosecute her c ase. O n Aug ust 30, 2010, the Court ordere d that “plaintiff pe rsonally or throug h counsel must respond to the two pendingmotions on or before September 20, 2010 or fac e the c onsequenc es. Plaintiff or her c ounsel shall also aff

irmatively

state whe ther or not plaintiff w ishes to further pursue this

case .” Or der a

t 2, Aug . 30, 2010 [Dkt. No. 62]

. I n response , on September 24, 2010, Ms. Musick, throug h counsel, filed a n opposition t o the Depa

rtment’s motion for re considera tion, consisting primarily of a 121- pag e,

9unsworn stateme nt from Ms. Musick herse lf rang ing on a varie ty of topics both rele vant and irrele vant to this case. See g ener ally Resons. Opp., Ex. 1 at 3-124; see also Recons. Reply at 2. Ms. Musick, throug h counsel, a lso filed an opposition to the Depar tment’s motion to t reat its motion for rec onsideration as c oncede d, acknow ledg ing tha t the Court had the discre tion to treat the motion as conce ded, but re questing that the Court not do so.

The De partment re plied to Ms. Musick’s oppositi ons on October 7, 2010, and then moved, with the conse nt of Ms. Musick, that the Court continue the trial in this case until the Court resolved the Depa rtment’s two pendingmotions. On November 10, 2010, the Court g rante d the motion to continue the trial in this case. Subsequently , on Marc h 3, 2011, the Court denied the D epar

tment’s motion to t reat its m otion for re consideration as conce ded and sa id it would consider the motion for rec onsideration on its merits, see Minute Or der, Ma rch 3, 2011, which it now does.

I I . L EGAL STANDARD A. Rec onsideration “[T] here is no Fede ral Rule of Civil Procedure that expressly addre sses motions for r econside ration[.] ” Clark v. F eder , Semo & B ard, P.C., 736 F. Supp. 2d 222, 224 (D.D .C. 2010). B eca

use the Court’s Or der of

October 24, 2007 denying the Depa rtment’s motion for summary judgme nt is int erloc utory , howeve r, the De partment’s motion for r econside ration proper ly is chara cter ized as a motion under Rule 54(b) of the F eder al Rules. See id. at 224-25;

see a lso F E D . R. C I V . P. 54(b) (“ [A] ny order or other de cision . . . that adjudicate s fewe r than a ll the claims . . . may

be re vised at any

time before the entry

of a judg ment adjudicatingall the

10claims[.] ”). “ The Court has br oad discre tion to hear a motion for rec onsideration broug ht under Rule 54(b), . . . a

nd rec onsideration is appropr iate as justice r equire s[.] ” Clark v. F eder , Semo & B ard, P.C., 736 F. Supp. 2d at 225 (quotations and citations omitt ed). B. Summary J

udgment Summary judgme nt may

be g rante d if “the mova

nt shows that there is no g enuine dispute as to any

materia l fac t and the movant is entitled to judgme nt as a matter of law.” F E D . R. C I V . P. 56(a); see also Ander son v. L iberty L obby , I nc., 477 U.S. 242, 247-48 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 ( D.C. Cir. 2006). “A f act is mater ial if a dispute over it might af fec t the outcome of a

suit under the g overninglaw.” H olcomb v. Powell, 433 F.3d at 895 (quoting Ander son v. L iberty L obby , Inc., 477 U.S. at 248). A n issue is “g enuine” if the evidenc e is such that a r easona ble jury could re turn a ve rdict for the nonmoving pa

rty . See Scott v. Har ris, 550 U.S. 372, 380 (2007). On a motion for summary judgme nt, the Court will construe the evide nce in the light most favor able to the nonmovingparty . See Ande rson v. L iberty L obby , I nc., 477 U.S. at 255; see a lso Mastro v. Potomac Elec. Powe r Co., 447 F.3d 843, 849- 50 (D.C. Cir. 2006); Aka v. Washing ton Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) ( en banc ). The nonmoving party ’s opposition, however, must state more than mere unsupported alleg ations or denials. See F E D . R. C I V . P. 56(c) (1)( A) (must cite to pa rticular pa

rts of mater ials in the rec ord, including depositions, documents, and af fidavits or dec lara

tions); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). I f the nonmovant’s e vidence is “mere ly colora ble” or “not sig nificantly

probative,” summary judgme nt may

be g rante d. Ander son v. L iberty L obby , I nc., 477 U.S. at 249-50;

11see a lso Scott v. Harris, 550 U.S. at 380 (“ [W ]here the r ecor d taken a s a whole c ould not lead a

rational trier

of fa ct to find for the non-moving party , there is ‘no g enuine issue f or trial.’” ) (quoting Matsushita Elec. I ndus. Co. v. Ze nith Radio Corp., 475 U.S. 574, 587 (1986)).

I I I . DI SCUS SI ON A. Rec onsideration Ex erc ising its broad discr etion, see Clar k v. Fe der, Semo & Ba

rd, P.C., 736 F. Supp. 2d at 225, the Court conc ludes that justice re quires that it rec onsider its October 24, 2007 Orde r deny

ing the Depa

rtment’s motion for summary judgme nt. I n its previous Order , the Court found that there wer e g enuine issues of ma terial fa ct in dispute, and that the De partment was not entitled to judg ment as a matter of law . See Or der at 1, Oct. 24, 2007. Upon fur ther consideration, and havingrevie wed a g ain the entire rec ord in this case, the Court concludes that there are in fac t no ge nuine issues of mater ial fac t in disput e. The Court theref ore w ill gra

nt the Depa rtment’s motion for re consideration and will consider ane w the De partment’s motion for summary judgme nt.

B. Retaliation Ms. Musick makes only

one cla im in thi s case : she alleg es that she wa s unlawfully terminated be cause of her prior par ticipation in protected a ctivity , in violation of Title VI I . See Compl. ¶¶ 22-26. The D epar tment disag ree s. I t contends that Ms. Musick was ter minated for a leg itimate, non-discriminatory rea son and not in retaliation for protec ted ac tivity

— that is, that Ms. Musick made thre ateningstatements of violenc e about va rious Depa

rtment offic ials.

12Title VI Imakes it unlawful f or an e mploy er to “ ‘discriminate a g ainst any of his employ ees or

applicants for

employ ment . . . beca

use he ha s opposed any

prac tice made an unlawful e mploy

ment prac tice by

this subchapter, or

beca use he ha s made a

char g e, testified, assisted, or par

ticipated in any

manner in an investig ation, proce eding , or hea ring under this subchapte r.’” Br ight v. Copps, Civil Action No. 08-0755, --- F. Supp. 2d --- -, 2011 WL 6123470, at *6 (D.D .C. Dec. 9, 2011) (quoting 42 U.S.C. § 2000e-3(a )). In order to preva il on a reta liation claim under Title VI Ian employ ee must show that “she eng ag ed in protec ted ac tivity , as a c onsequenc e of which her employ er took a

materia lly

adver se ac tion ag ainst her.” Taylor v. Solis , 571 F.3d 1313, 1320 ( D.C. Cir. 2009) (quotations omitted). Thus, the two eleme nts of such a c laim are that a plaintiff “ ‘suffe red ( 1) a materially adver se ac tion (2) bec ause he or she had broug ht or threa

tened to bringa discrimination claim.’” Br ight v. Copps, 2011 WL6123470, at *7 (quoting Ba loch v. Kempthorne , 550 F.3d 1191, 1198 ( D.C. Cir. 2008)).

Where, a s here , direc t evidence of unlawf ul retaliation is lacking , such cla ims are initially assessed unde r the thre e-pa rt burden- shifting f

rame work e stablished by

the Supreme Court in McDonnell Doug las Corp. v. Gre en, 411 U.S. 792 (1973). Under that frame work, a plaintiff has the initial burden of proving by

a pre pondera

nce of the evidenc e a prima facie case of re taliation by

showing that (1) she eng ag ed in statutorily protec ted ac tivity ; (2) she suf fer ed a materia lly

adver se ac tion by

the employ er; a

nd (3) a causa l connec tion ex isted betwee n the protec ted ac tivity

and the mate rially

adver se ac tion. See J ones v. B erna nke, 557 F .3d 670, 677 (D.C. Cir. 2009); Br ight v. Copps, 2011 WL6123470, at *7.

Once the plaintiff esta

blishes a prima facie case , the burde n shifts to the employ er to produce a leg itimate non-discriminatory , or non-r etaliatory rea son for its actions. I f the

13employ er doe s so, “‘the bur den-shiftingframework disappe ars, a nd [t he cour

t] looks to whether a

rea sonable jury

could infer

reta liation from all the evidenc e,’” including the prima facie case , any evidenc e the plaintiff of

fer s to attack the e mploy er’ s proffe red e x planation, and a ny independe nt evidenc e of r etaliation. Guaja cq v. EDF , I nc., 601 F .3d 565, 577 (D.C. Cir. 2010) (quotingJ ones v. Be rnanke , 557 F.3d at 677); see a lso Tay lor v. Solis, 571 F.3d at 1320. At that point, “the only question is whether the employ ee’ s evidenc e cr eate s a mater ial dispute on the ultimate issue of reta liation either direc tly

by [showing] that a discriminatory rea son more likely

motivated the employ er or

indirectly

by showing that the employ er’ s proffe red e x planation is unworthy of

cre dence .” Jones v. Ber

nanke, 557 F .3d at 678 (quotations omitted) (alter ation in orig inal). And in assessing whether

such a material dispute exists, a court must ex amine all re levant “c ateg ories of evide nce — pr ima fac ie, pre text , and any other — to dete rmine whe ther they either se parately or in combination provide suff icient evidenc e for

a re asonable jury

to infer r etaliation” so a s to defe at summary

judgme nt. I d. at 679 (quotations omitted). I n this case, the D epar

tment has asser

ted a leg itimate, non-discriminatory rea son for Ms. Musick’s ter

mination. Theref

ore, a s the court of

appea ls instructs, the only question befor e the Court is whethe r Ms. Musick has prof fer ed suff icient evidenc e to cr eate a mater ial dispute either dire ctly

by showingthat a discriminatory rea son, retaliation for

protec ted ac tivity , more likely

motivated the Depa

rtment or indirec tly

by showing that the Depa

rtment’s prof

fer ed explanation — that Ms. Musi ck wa s terminated f or makingstatements of violenc e towar d various De partment off

icials — is unworthy

of cr edenc e. See Jones v. Be rnanke , 557 F.3d 670, 678; see a lso Murray

v. Gilmore, 406 F .3d 708, 713 (D.C. Cir. 2005).

14Ms. Musick provides two purporte d bases f or showingprete x t: (1) she re lies on the asser ted tempora l prox imity

betwee n her f

iling of EE O complaints and a nother law suit she broug ht in this Court in 1997, and the adve rse e mploy ment action take n ag ainst her in De cembe r 2001; and (2) she asser

ts that she never

made the a lleg ed stateme nts of violence, a nd that the Depa rtment conduc ted a biase d investigation of the matter be cause it failed to make he r “a rea l part of the investigation.” MSJ Opp. at 8. The Court examines the evidence offe red by Ms. Musick on these points.

1. Prima Facie Evidence — Ms. Musick’s EEO Complaints and Separate L awsuit in This Court

The De partment doe s not dispute that Ms. Musi ck eng ag ed in protec ted ac tivity when she filed EEO c omplaints from 1993 to 1999 and filed a c omplaint in thi s Court in 1997. But the D epar

tment arg ues that the tempora l prox imity betwee n that protec ted ac tivity and this

case is nonex istent. As the Depa rtment descr ibes it: Plaintiff’s remova l for makingstatements of violenc e ag ainst [Department] employ ees, inc luding he r super visor, was e ffe ctive Dec ember

7, 2001, for a

n incident that occ urre d on May 1, 2001. . . . [T] here is no temporal conne ction betwee n the filing of her administrative complaints and District Court Complaint (in 1999 and prior) and her

remova l in 2001. MSJ at 8. In response , Ms. Musick argues that her district court complaint in Civil Action No. 97-0143 “ was still being litig ated at the time of the adve rse a ction” re levant to this case. MSJ Opp. at 7. Thus, Ms. Musick ar g ues that there was a causa l connec tion between he r protec ted ac tivity

and the r etaliatory

discharg e. The Court disag ree s with Ms. Musi ck. To be sure, c ourts in this di strict have conclude d that “ong oing litig ation [i s] a statutorily protec ted ac tivity .” Pendleton v. Holder , 15697 F. Supp. 2d 12, 23 (D.D .C. 2010); see Kr anz v. Gray , Civil Action No. 09-2043, - -- F . Supp.

2d --- -, 2012 WL271308, at *9 (D.D .C. J an. 31, 2012); Willi ams v. Dodar o, 691 F. Supp. 2d 52, 55-56 (D.D .C. 2010); see a lso L owe v. District of Columbi a, 669 F . Supp. 2d at 27 (“Where a plaintiff suffe rs re taliation for par ticipation in a lawsuit, the Court must look not only to when the participation occurr ed, but when the animosities created by that lawsuit would have e nded.”)

. But see Glady siewski v. Alleg hney Energy , 398 Fe d. App’x 721, 724 (3d Cir. Sept. 20, 2010) (“[W] e ty pically measure temporal proximit y from the date of filingrathe r than fr om the date a lawsuit is resolved . . . since the protec ted ac tivity in which a litiga

nt eng ag es is the filing of a complaint, not its di smissal by a cour t.”) (quotations and citation omitt ed). B ut a plaintiff does not automatically

maintain temporal proximit y throug hout the entirety

of the litiga

tion. See Smit h v. Allstate Ins. Corp., Civil Action No. 99-4240, 2001 WL1104713, at *11-12 (N .D. I ll. 2001) (pe riod betwe en filinga lawsuit and its completion is not “an ope n time period of ‘protec ted ac tivity ’”) . I nstead, a plaintiff must present at a minimum s ome evidenc e that she w as

“ actively pursuing her Title VI Ilitigation” whe n the adve rse a ction was take n ag ainst her. Wil liams v. Dodaro, 691 F . Supp. 2d at 56 (emphasis adde d).

I n her pa pers, Ms. Musick has done nothing more than asser t — without any explanation — that because her pr ior lawsuit was “ pending ” at the time of her te rmination, “[t] he

causa l connec tion was still running at the time.” MSJ Opp. at 4. Ne verthe less, the Court, on its own initiative, has revie wed the doc ket shee t in Ci vil Action No. 97-0143. It reve als that during most of the time betwee n J anuar y 21, 1997, when the c omplaint was filed, and N ovember 2001, Ms. Musick was not ac tively pursuing her c ase. I

n November

of 2001, howe ver, the court set a briefingschedulingfor dispositive motions. S ee Musick v. N orton, Civil Action No. 97-0143,

16Orde r at 1 (D .D.C. Nov. 1, 2001). The defe ndant filed its motion to di smiss Ms . Musick’s

complaint on November

16, 2001; Ms. Musick filed an opposition on J anuar y 22, 2002. As discussed, Ms. Musick was te rminated on De cembe r 7, 2001, which is during the time of the dispositive motions s chedule set in Civil Action No. 97-0143. Ms. Musick, howeve r, did not file her

opposition unt il J anuar

y 22, 2002 — afte r her

termination — and appea rs to have r equeste d a stay of all proc eeding s in Dece mber 2001. See Musick v. Norton, Civil Action No. 97-0143, D kt. No. 105: Notice of F iling by Ms. Musick in Support of Mot. for a Stay of All Procee dings, D ec. 14, 2001. B ut even a ssuming that Ms. Musick’s ac tivity in Civi l Action No. 97-0143 a

round the time of he r termination could c onstitut e ac tive pursuit of her Title VI Ilitigation, tempora l prox imity “alone is simpl y

insufficient to discre dit [ a] defenda nt’s proff ere d explanation” for a

n adver se ac tion. Kranz v. Gray , 2012 WL 271308, at * 9 (c iting Sewell v. Chao, 532 F . Supp. 2d 126, 139 (D.D.C. 2008) (“ [T] empora l prox imity . . . standing alone . . . is insufficie nt to discredit defe ndant’s prof fer ed explanation[.] ”)) ; see Pende lton v. Holder, 697 F . Supp. 2d at 23 (“Te mporal proximi ty alone . . . is insufficie nt to rebut” a n employ er’ s proffe red e x planation for its adve rse a ction.). As the c ourt of appe als has stated: “‘[P] ositive evidence beyond m ere prox imityis require d to defe at the pre sumption t hat the proff ere d explanations are g enuine.’ ” Hamilton v. Geithner, 666 F.3d 1344, 1359 ( D.C. Cir. 2012) (quotingWoodruff v. Peters, 482 F .3d 521, 530 (D.C. Cir. 2007) (e mphasis added) ). There fore , Ms. Musick’s claim of tempora l prox imity alone is insufficie nt to discredit the Depa rtment’s prof

fer ed explanation for he r termination.

172. Pretext Evidence — The Depa rtment’s Investig ation, and the Alleg ed Thre ats Ms. Musick asserts that the De partment’s r eason f or her termination was prete x tual, and she c ontends that there are two g enuine issues of material fa ct in dispute releva nt to this assertion of prete x t:

1. Whether or not De fenda nt conducted a

fair a nd evenha

nded investigation of the alleg ations that Plainti ff made threats of violence a g ainst her c o-worke rs and supe rvisors. 2. Whether or not Plaintiff did, in fac t, make thre ats of violence ag ainst her c o-worke rs and supe rvisors. Pl. S MF at 9 (citations omitted).

As for the first purporte d g enuine issue of materia l fac t, Ms. Musick asserts that she wa s “not made a

rea l part of the inve stigation,” which “be tray s that the purpose of the entire proce ss was re taliatory .” MSJ Opp. at 8. As discussed a bove, see supra at 5-7, howeve r, Ms. Musick’s statements on this purported issue a re inc onsistent. Although Ms. Musick asser ts in her pa pers that Mr. D eYoungdid not interview or other wise talk with her, MSJ Opp. at 8 (citing DeYoungAff. at 55), she provide s no aff idavit or dec laration of her own to that e ffe ct, and Mr. DeYoung ’s af

fidavit does not entire ly

support her a ssertion. Mr. De Youngacknow ledg es that he did not formally

interview Ms. Musick, but asse rts that he did have a brie f discussion with her about the issue. See D eYoungAff. at 54-55. I t theref ore is undisputed that Mr. De Young did talk with Ms. Musick about the alleg ed incident.

As for the decidingofficia l, Dr. Russ, he asser ts that on September 4, 2001 he me t with both Ms. Musi ck and he r attorne y at the time, Solaman L ippman, and that he g ave Ms. Musick an opportunity

to speak on he r own be half. See Russ Aff. at 14-15. A lthough Ms.

18Musick appea rs to claim that Dr. Russ neve r spoke with her , see MSJ Opp. at 8; Musick Aff at 40-41, she ha s made swor n statements to the contra ry . See 3/10/04 Musick Dep. at 110 (“I talked to Dave Russ on S eptember 5th of 2001. . . . [He] asked me if I ’d made violent threats ag ainst my

supervisors at USGS and Isaid no.”); 7/4/04 Musick Dep at 13 (“Q: Do you rec all meetingwith Mr. [si c] Ross? A: Yes. Q: When did y ou meet with Mr. [sic] Ross? A: Ibelieve it was on September 5th of 2001.”); see also 7/4/10 Musick Dep. at 36. More over, in he r most

rec ent filing , Ms. Musick expressly acknow ledg es that she a

nd Mr. L ippman in fac t did attend a hear ing c onducted by

Dr. Russ, and that she w as interview ed at that he aring . See Rec ons. Opp. at 29 (“ Sept. 2001, Mr. L ippman and Plaintiff attende d a hea ring conducte d by

Dave Russ and Cathy Skelton . . . . Pl aintiff wa s interviewe d in the hear ing.” ); see a lso id. at 36 (Ms. Musick, providing a timeline of e vents, stating: “ September 5, 2011, Plaintiff’s me eting with Dave Russ at USGS.”). That positi on is consistent with Dr. Russ’ affidavit, in which he states that he me t with both Ms. Musi ck and he r attorne y , and that he g ave Ms. Musick a n opportunity

to speak on her own behalf

. See Russ Aff. at 14. Furthe rmore, it is undisputed that prior to her termination Ms. Musick and her

attorney provided Dr . Russ with a written response in support of their position t hat she should not be ter minated bec ause she did not make any threatening statements. See Russ Aff. at 10-11, 14-16; Musick Aff . at 41. B y

her own admission, then, Ms. Musick was g iven the opportunity

to make her

case to the decidingofficia l on the matter. The re the ref ore is no g enuine dispute of material fa ct that nee d be re solved conc erningthe nature and fa irness of the hea ring

. 5

The c ourt of appe als in Br ady v. Offic e of the Serg eant at Arms noted that 5 employ ees of

ten try to cast doubt on an e mploy er’ s asserte d rea son for its adver se employ ment action by pointing to, among

other thing s, “the e mploy er’ s failure to follow established

19Wit h respe ct to the sec ond purported g enuine issue of materia l fac t, Ms. Musick emphasizes that she has “ emphatica lly denie[d]” making thre ats ag ainst I nterior De partment employ ees a

nd asser ts that this di spute “is the cor e of the case .” MSJ Opp. at 7. Whether Ms. Musick in fac t made thre ats of violence is irreleva nt. “The que stion is not whether the underlying [conduc t] occur red; rather, the issue is whe ther the employ er honestly and re asonably believe d that the under ly ing [conduc t] occur red.” Br ady

v. Offic e of the Serg eant at Arms, 520 F.3d at 496 (emphasis in orig inal). And on this issue, Ms. Musick has provided no e vidence to cre ate a

g enuine dispute re g ardingwhether , afte r thorough investigation, Dr. Russ honestly and re asonably

believed that Ms. Musick made threatening statements ag ainst Depa rtment employ ees to Ms. Mosg rave . Be cause “the e mploy er’ s stated belief about the under ly ing f

acts is

rea sonable in lig ht of the evide nce,” there is “no basis for pe rmitting a jury to conclude that the employ er is ly

ing a bout the underly

ing f acts.” Br ady

v. Offic e of the Serg eant a t Arms, 520 F.3d at 495; see G eorg e v. L eavitt, 407 F.3d 405, 415 ( D.C. Cir. 2005) (“[A]n employ er’ s action may be justified by

a re asonable belief in the va lidity of the re ason g iven eve n though that reason may turn out to be false .”) ( emphasis adde d).

The followingfac ts are undisputed: (1) Ms. Mosg rave and Ms. Musick had a conver sation on May

1, 2001. See De f. SMF ¶ 11; MSJ Opp. at 4; see also Recons. Mot. at 4 n.2.

proce dures or

criter ia[.] ” B rady

v. Offic e of the Serg eant at Arms, 520 F.3d 490, 495 n.3 ( D.C. Cir. 2008). Ms. Musick makes no such c laim here . To the contra ry , she expressly

acknow ledg es that “[e]very

proce dure w as prope rly

followed a

nd documented.” MSJ Opp. at 7. 20(2) Ms. Mosg rave told Mr. Kaas that Ms. Musick made statements of violenc e

ag ainst Depa

rtment employ ees dur ing that May 1, 2001 conver sation. Def. SMF . ¶ 15; Pl. S MF (no re sponse). 6 (3) Ms. Mosg rave then provided to the D epar tment a written stateme nt to that eff ect, a ssertingthat Ms. Musick repe atedly said she wa

nted to “blow . . . up” c erta in Depar tment employ ees a

nd “see them in their g rave s.” De f. SMF ¶ 21 ( quotations omit ted); Pl. SMF (no re sponse). (4) Mr. D eYounginterviewe d Ms. Mosgr ave a bout her stateme nts, Def. SMF. ¶ 23; Pl. S MF (no r esponse) , and Mr. Ka as provided a written statement to Mr. De Youngin which he c onfirmed the substanc e of his conve rsation with Ms. Mosgr ave — that is, that Ms. Mosgr ave sa id Ms. Musick had made “ threatening statements about ca using ha rm to employ ees at [the Depar

tment] .” De f. SMF ¶ 30 ( quotations omit ted); Pl. St mt. (no response)

. (5) Dr . Russ performe d his own investigation of the matter, a nd Ms. Musick provided Dr . Russ with a written response draf ted with the assistance of her attorney reg arding the alleg ed incident on Ma y 1, 2001. Def

. SMF. ¶ 34; Pl. SM F. ( no response ). (6) Dr . Russ int ervie wed Ms. Musick on September 4 or September

5, 2001. See supra at 6-7, 18-19; 3/10/04 Musick Dep. at 110; 7/4/04 Musick Dep at 13, 36; Recons. Opp. at 29, 36; Russ Aff. at 14.

(7) Dr . Russ int ervie wed Ms. Mosg rave and Ms. Kaa s, among others, and ultimately

decide d to terminate Ms. Musick. De f. SMF ¶¶ 35-36; Pl. S MF (no r esponse)

. I n her r ece nt 121-pag e re sponse to the Depa rtment’s motion for re consideration, 6 Ms. Musick at one point descr ibes Ms. Mosgr ave a s “a disintere sted third party witness, repe ating only

what she ha s hear d.” Rec ons. Opp., Ex. 1 at 19. But see id. at 30- 31. 21Ms. Musick has provided no e vidence from which a rea sonable jury

could doubt that Dr. Russ acte d in good f aith upon his honest belief that Ms. Musick made statements of violence to Ms. Mosg rave . See B rady v. Offic e of the Serg eant at Arms, 520 F.3d at 495. After Dr. Russ interviewe d Ms. Mosgr ave, he found her to be neutra l, cre dible, and consistent, and he conclude d that she truthfully repor ted to the Depa

rtment that Ms. Musick had made threats of violence. See Russ Aff. at 45-47. D r. Russ then deter mined that Ms. Musick’s threats were disruptive to the workplac e and ne g atively aff ecte d morale a

nd the ef ficienc y of the ser vice a nd

war rante d termination. See De f. SMF ¶¶ 37-39; see a lso MSJ , Ex . 19 at 2. I t is not t he Court’s role to dispute the cor

rec tness of Dr. Russ’s judg ment on Ms. Mosgr ave’ s cre dibilit y and his fac tual deter

mination that Ms. Musi ck did make thr eats of violenc e. See B rady v. Offic e of the Serg eant a

t Arms, 520 F.3d at 496 (“Althoug h Br ady asser ts that the acc usations and ensuing investigation were rac ially tainted and the inc ident did not occur, he did not produce e vidence sufficie nt to show that the Serg eant at Arms’ conc lusion was dishonest or unrea sonable.” ). There fore , the Court conclude s that Ms. Musick has not cre ated a materia l dispute on the ultimate issue of reta liation, and the Depa rtment there fore is entitled to judgment as a matter of law. See Jones v. Be rnanke , 557 F.3d at 678. 7

The Court notes that ther e is a letter in the rec ord, included a s an attac hment to the 7 Depa rtment’s motion for summary judgme nt, from Dr. Patric k J . Sheehan to Ms. Musick’s former attorney , dated July

16, 2001. I n that letter, Dr . Sheehan a sserts that he c ontacted Ms. Mosgr ave, a

nd she told him that Ms. Mus ick did not “discuss any plan to kill any one” a

nd “expressed the sentiment that she was be ing use d to ge t rid of Ms. Musick.” MSJ , Attachment to Ex . 23, L etter f

rom P. Sheehan to S. L ippman at 3-4, July 16, 2001 [Dkt. No. 37-25 at 24-27]. Although the substance of this letter presumably

could ca st some doubt on Ms. Mosgra ve’s cre dibilit y , neither pa

rty ref ere nced it or e ven cited it in their pa pers. Nor does it appea

r to be a statement g iven under

oath. The pa

rties have g iven the Court no re ason to conc lude that this letter should be g iven any probative va lue at the summary judgme nt stag e, and the Court there fore will not consider it. See F E D . R. C I V . P. 56(c)( 3) (“ The c ourt nee d consider only the cited mater ials[.] ”). 22I V. CONCL USI ON For the fore g oing r easons, the Court will g rant the D epar tment of the Interior’ s motion for rec onsideration, will vaca te the Or der dated Octobe r 24, 2007 deny ing the Depa rtment’s motion for summary judgme nt, and will gr ant the De partment’s motion for summary judgme nt on Count One of Ms. Musick’s complaint. An Or der c onsistent with thi s Opinion shall issue this s ame da y . SO ORDERED. /s/ PAULL . FRI EDMAN DATE: Mar ch 14, 2012 United States District J udg e

23