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Hewitt v. Whitaker

United States District Court, S.D. Alabama, Southern Division

November 25, 2018

MATTHEW WHITAKER,[1] et al., Defendants.

          ORDER [2]


         Plaintiff, a Deputy United States Marshal, filed this Title VII employment discrimination suit pro se against the Attorney General of the United States (“Attorney General”), United States Marshal Charles Andrews, and Supervisory Deputy United States Marshal Ed Eversman, alleging disparate treatment and a hostile work environment based on her sex. See 42 U.S.C. § 2000e-16(c).[3] Pending is Defendants' Motion to Dismiss the Complaint for failure to state a claim and for failure to exhaust administrative remedies, ECF No. 14. Because evidence outside the Complaint was attached to the motion to dismiss, the Court gave notice that the summary judgment procedures of Rule 56 would apply. See S.D. Ala. Loc. R. 56. Plaintiff was given additional time to respond, and, like Defendants, Plaintiff also submitted evidence outside the pleadings.[4] Now, having fully reviewed the matter and viewing the record and reasonable inferences in the light most favorable to Hewitt, the Court finds that the motion is due to be granted.

         I. Background

         Plaintiff Lawanda Hewitt is presently employed as a Deputy United States Marshal for the United States Marshals Service, assigned to the Southern District of Alabama's Mobile office. At the time of the events alleged, she was the only woman deputy in the Mobile office. She complains she suffered sex discrimination and a hostile work environment based on actions taken by the warrants supervisor, Supervisory Deputy United States Marshal Ed Eversman. Hewitt filed an informal agency grievance with the United States Marshal's Service on May 12, 2015, and a formal grievance with the its Human Resources Division on May 24, 2015. On June 11, 2015, she requested counseling pursuant to the agency's equal employment opportunity (“EEO”) complaint process, and she filed a formal EEO complaint on July 20, 2015, with the United States Marshals Service's Office of Equal Employment Opportunity. The Marshals Service's EEO office commenced an investigation into the following instances of alleged discrimination by Eversman: (1) a communication on April 30, 2015, criticizing the timeliness of Hewitt's actions on a warrant; (2) a job performance evaluation on June 16, 2015; and (3) other allegedly harassing conduct, such as singling out Hewitt by scolding, belittling, and humiliating her in front of co-workers.

         Hewitt's EEO claim was denied, and she timely filed this suit, seeking compensatory and equitable relief.[5] In her Complaint, Hewitt alleges the following instances of alleged discrimination and harassment, occurring from 2011 through 2015.

         1. Fall 2011 Training at the Range

         The first major incident alleged by Hewitt occurred in the fall of 2011, when she and other deputies were attending training at the firing range, and Eversman was conducting CPR training as well. Eversman advised the deputies by email that the lunch break during the training would be limited to 30 minutes, so they should bring their lunch.[6] Hewitt made arrangements for herself and three other deputies to have lunch at her sister's house, which was 200 yards from the range, and they returned within 20 minutes. Eversman singled out Hewitt for leaving during the break and scolded her for disobeying his orders. He called Hewitt defiant, verbally reprimanded her with an angry tone for ten minutes, and belittled her in front of a co-worker, causing her to cry. She alleges that none of the other deputies were reprimanded. When Hewitt complained to her immediate supervisor, Supervisory Deputy United States Marshal Dwayne Guida (now retired), he reviewed Everman's email instructions about the lunch break and expressed an opinion that Hewitt had done nothing wrong. When the incident was brought to the attention of Chief Deputy United States Marshal Marcia Lewis (now retired), she remarked that Eversman cannot order people where to eat lunch and ensured that all deputies who had stayed as instructed received 30 minutes of overtime pay.

         2. Spring 2013 Missed Call

         Another incident occurred in the spring of 2013. Hewitt was off duty on a weekend and noticed she had missed a call from the work answering service. She immediately called her supervisor, Eversman, who screamed and yelled at her for ten minutes on the phone and threatened to write her up for not calling back sooner. Hewitt learned that Eversman did not speak with the same tone but had been calm and polite when he reprimanded the male deputy who had been the deputy on duty that weekend who, like Hewitt, had also missed the call. Hewitt notified Supervisor Guida of Eversman's conduct, saying she felt that he had treated her like his teenage daughter. Chief Lewis, who was also informed of the incident, said she would “handle Ed.” A few days later, Criminal Clerk Denise Perkins told Hewitt that she had overheard Eversman laughing about how Chief Lewis had ordered him not to speak to Hewitt anymore.

         3. Spring 2013 Warrant & Performance Rating

         Another missed call incident occurred in the spring of 2013. Hewitt had learned that a fugitive who was the subject of a warrant she was working had been taken into custody by the Fairhope, Alabama, Police Department, and she thus began making arrangements to have the subject transferred to Mobile, Alabama, when she missed a call from Eversman. She returned the call as soon as she noticed it and learned he had been calling to inform her that the suspect was in custody, although she was aware of this fact and had been working on the case. Eversman scolded her for not returning his call immediately. A few months later, Hewitt's annual performance evaluation reflected a score of “3” (Successful) in the category of Investigations, which she considered unfair, particularly given that she received ratings of “4” (Excellent) or “5” (Outstanding) in all other categories. Hewitt questioned the Investigations score because she has 17 years of investigative experience, but when she complained to Guida, he told her that Eversman, as the warrants supervisor, had the responsibility for evaluating and rating deputy performance on investigations. Guida told Hewitt not to take it personally, saying, “Ed has a problem with females. Before you, it was Nicole. Before Nicole, it was Robyn.” ECF No. 1, at 5 (Complaint).

         4. Winter 2013 Task Force Team Leader Tryouts

         Hewitt also alleges that during the winter of 2013, there were team leader tryouts for the United States Marshals Service Fugitive Task Force. Applicants were given a detailed description of the grading system, which consisted of five categories (their annual evaluation, a fitness test, shooting proficiency, a sample written report, and an interview). Hewitt was sick with the flu and unable to participate in the tryouts that winter, and Deputy Dickerson (male) had been selected by the time she returned to work. Hewitt heard that Eversman had decided to give “extra credit” for push-ups on the physical fitness portion of the exam, and she complained to Chief Lewis that this showed a bias toward the men. Hewitt states that Chief Lewis was “upset about the extra-credit push-ups” but assured Hewitt that this was not the deciding factor. Hewitt admits that she could not have participated in 2013 due to her illness and also because the selection was over by the time she returned to work. When team leader tryouts were held the following year, in September 2014, Hewitt asked whether there would be extra credit for push-ups, again voicing concern about the tryouts being biased toward men, and Eversman replied with a “scathing email, ” saying her complaint of bias did not “hold water” because she had not competed in the 2013 tryouts.[7]

         5. January 2014 Timeliness of Warrant

         During January 2014, Eversman confronted Hewitt about the length of time it was taking her to act on a particular warrant. According to Hewitt, she had worked the warrant only for four days because she had been on vacation and because freezing weather and ice had closed most businesses, including the courthouse, for a few days. Hewitt stated that in light of these circumstances, Eversman's criticism of her for not working more on the warrant showed discriminatory treatment because he did not supervise the male deputies so closely. Again, she felt unfairly singled out because she was female. Hewitt complained of this confrontation to Guida, who minimized the incident, telling her, “that's just Ed being Ed.”

         6. Fugitive Roundups

         Hewitt states that during her seven years of employment, there had been three “fugitive roundups” but she had not been allowed to participate in any of them. She stated that Eversman and Guida were responsible for assigning deputies to work in the round-ups and that these opportunities are important for career advancement.[8]

         7. Administrative Desk Duty

         Hewitt's Complaint also includes allegations that she was denied career opportunities in part because she was required to sit at the front desk during a time when the criminal clerk had been relieved of her duties. Hewitt was told that all deputies would be required to take a 30-day rotation to cover the desk work, but she says she was the only one required to do so.[9] Consequently, others referred to her as the “deputary.” Another deputy, William McAdam, knew of no male deputies assigned to the front desk to perform clerical duties and he said the term “deputary” was used to describe a deputy who is required to perform clerical duties instead of law enforcement duties.

         8. Treatment of Other Females

         Hewitt alleges that Eversman has treated other females less favorably as well. Deputy Marshal Nicole Dugan, who worked in the Mobile office from 2007 through 2011, stated by affidavit that she felt singled out for job performance issues and was denied opportunities because she was female. She said she was denied an opportunity to attend special operations training when Eversman told her that she could not sign up because “you're a girl.” ECF No. 16, at 40. Denise Perkins, a Criminal Program Specialist in the Mobile office at the time, stated she was bullied by Eversman, who once made a gloating remark after she had been reprimanded by a supervisor, stating, “Awww, did you get your pee pee slapped?”[10] ECF No. 16, at 46. Perkins stated in her affidavit that Eversman was prone to “sudden outbursts” and “tyrannical behavior.” ECF No. 16, at 45. Additionally, Court Security Officer Connie King provided an affidavit stating that she was bullied and intimidated by Eversman. In her affidavit, she recounted an incident with Eversman after Hewitt had filed a grievance. King stated that Eversman confronted her in a parking garage on May 21, 2015, after learning of Hewitt's grievance against him. He warned King that any animosity he might show her in the future would depend on how she answered his questions, and he then asked whether she had helped Hewitt draft an EEO complaint, among other things. She stated that Eversman was agitated and spoke in a manner that made her uncomfortable.[11]

         9. Email, April 30, 2015, on Timeliness and Warrant Checklist

         In April 2015, Eversman confronted Hewitt again about her progress on a warrant investigation. Hewitt admits she had not made much progress, having been busy dealing with other matters, including a property inventory, the transfer of two deputies, and another deputy's funeral. Eversman called her into his office and went over a checklist, asking her which tasks she had completed and scolding her for lack of investigative actions over a period of four weeks. Hewitt felt that Eversman's criticism of her job performance was unjustified and she complained to Guida, who recognized that Hewitt had been extremely busy and asked Eversman not to hold this against her. Three weeks later, on April 29, 2015, Hewitt received another “scathing email” from Eversman with a checklist to complete and deadlines for completion of the required tasks.[12] On April 30, Eversman assigned Hewitt a new warrant and sent her an email requiring her to follow a detailed checklist of tasks and to report her findings and activities to him in person by May 6. He had been advised to provide Hewitt a checklist to follow by Chief Deputy Marshal Vernon Johnson, who took over after Chief Lewis retired. Again, Hewitt felt she had been singled out for different treatment than her male deputy counterparts. She showed the email to her direct supervisor, who commented, “why is he singling you out?” and to other deputies, who commented that Eversman does not micromanage their work in this way. After showing the email to others, co-workers advised Hewitt to file a grievance, offering the opinion that Eversman obviously had “personal issues” with her.

         10. Performance Rating, June 16, 2015

         On June 16, 2015, Hewitt again received a “3” (Successful) performance rating from Eversman in the “Investigations” category of her annual performance evaluation, but despite this lower rating, Hewitt received an overall performance rating of “4” (Excellent).[13] Eversman provided comments with his review, including that Hewitt did not complete warrants in a timely manner, that she did the minimum amount of effort to complete assigned investigations, and that she would benefit from implementing better time management skills. Hewitt disagreed with his assessment. Hewitt notes that in the separate category of “Time Management, ” scored by Guida, she received a “4” (Excellent), and also references a spreadsheet created by Eversman himself, showing the dates that warrants were assigned and closed. According to Hewitt, this confirms that she closed warrants faster than any other deputy in her office and had the least number of warrants outstanding for over 30 days.[14] Eversman explained by affidavit that Hewitt's warrants were subject to scrutiny for timeliness because she was assigned Class 1 warrants, which required the reporting of statistics.[15] According to Eversman, Hewitt always had some excuse for why she had not completed an investigation, and he commented that her work showed a repeated lack of attention to timeliness.

         Hewitt alleges that several weeks later, the deputies received cash awards based on their annual performance evaluations and that she received a lesser cash award than the male deputies who, like her, had received an overall rating of Excellent. Documentary evidence shows that four Deputy Marshals (3 males, 1 female) received an overall score of Excellent--the three males received a cash award of $1, 450 whereas Hewitt received a lesser cash award of $875.[16] ECF No. 14-4. The record shows that Hewitt received a “3” (Successful) rating from Eversman on investigations for 2013, 2014, and 2015 and that she was never rated below “Excellent” overall on her annual performance evaluation.

         11. Singled out ...

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