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Payne v. Fanning

United States District Court, W.D. Louisiana, Alexandria Division

October 17, 2018

MICHELE PAYNE, ET AL.
v.
ERICK K. FANNING, SECRETARY OF THE U.S. DEPARTMENT OF ARMY

          PEREZ-MONTES MAG. JUDGE.

          RULING

          DEE D. DRELL JUDGE.

         Plaintiffs, Michele Payne, Patricia Lynn Holaway, and Jacqueline Calhoun, filed suit on September 23, 2013, against the United States Department of the Army, through then Secretary, John M. McHugh[1]. (Doc. 1). All three plaintiffs, Caucasian women employed as counselors for the Army Substance Abuse Program ("ASAP") at Fort Polk, Louisiana, asserted claims for discrimination based on race, hostile work environment, and reprisal for engaging in prior EEO activity. Payne and Holaway further asserted claims for discrimination based on a perceived disability. All three women blamed their supervisor, Charlayne Lacking (African American), for the wrongful treatment.

         Defendant filed a Motion to Dismiss and for Summary Judgment (Doc. 39) which this court granted in part and denied in part. (Doc. 88). Specifically, we dismissed, with prejudice, Plaintiffs' claims for constitutional discrimination and violation of the Whistleblower Protection Act. We further dismissed: (1) all of Calhoun's Title VII claims; (2) Holaway's Title VII claims for racial discrimination as to her pay grade, reprisals through ostracism and emails, discrimination in student loan reimbursement and benefits for her foot injury, and hostile work environment; and, (3) Payne's Title VII claims of retaliation (through issuance of a Letter of Counseling and a Letter of Reprimand), and hostile work environment. Thus, the only remaining claims for trial were claims asserted by both Holaway and Payne for retaliation pursuant to Title VII.

         Although the nature of their remaining claims were the same, the specifics of and factual circumstances surrounding their claims varied significantly. For example, Holaway claimed she was retaliated against for participating in a "sensing session" and being named as a potential witness in Calhoun's EEO charge. As a result, she claimed she was denied training and was given an increased workload. In contrast, Payne claimed she was retaliated against for engaging in protected EEO activity, and then being denied training, placed on a focused professional practice evaluation (FPPE), and demoted. In light of the distinctions, we determined the matters should be tried separately with Holaway's remaining claims tried to the bench on June 24, 2017, and Payne's remaining claims tried to the bench on November 7, 2017.

         I. Facts[2]

         A. Payne

         Payne first joined Fort Polk's Army Substance Abuse Program ("ASAP") as a counseling psychologist in 2001. Payne and Lacking worked together as counseling psychologists from 2003 through 2009. Payne moved abroad to Japan during 2009 and returned to Fort Polk and ASAP during 2010. Upon her arrival and return to work, she learned Lacking had assumed the role as the Acting Clinical Director of ASAP.

         In October 2010, ASAP's clinical services were realigned from the U.S. Army's Medical Command (MEDCOM) to the U.S. Army Installation Management Command (FMCOM). The realignment was significant because it changed operating procedures for ASAP clinics and their staff members. The increased job duties resulted in the need for a Supervisory Counseling Psychologist at Ft. Polk's ASAP. Lacking and her immediate supervisor, Thomas Gillard, ASAP's Program Manager, recommended Payne to fill the position and Director of Human Resources at IMCOM, Bobbie Stark (Caucasian), approved Payne's selection.

         Payne accepted the position and commenced working as the Supervisory Counseling Psychologist on March 3, 2011. She accepted the position fully aware of the fact she had to successfully complete a year-long probationary period in order to retain the position on a permanent basis.

         Within a month or two of starting, Lacking documented certain deficiencies with Payne's performance, and identified them to Payne. Payne accepted the critiques and made no contemporaneous overtures that the critiques were unwarranted or based on any type of discrimination or harassment.

         In June 2011, the Army announced it would fill Lacking's position, Clinical Director of Fort Polk ASAP, on a permanent basis and opened an application process. Both Payne and Lacking applied for the position and Lacking was ultimately chosen. A month thereafter, the tension between Lacking and Payne began.

         The first instance arose out of a July 13, 2011, email Lacking sent Payne directing her to remove from her office door a flier that advertised a "Tea Party" sponsored event. In the email Lacking advised that removal of the flier was warranted as it posed a violation of the Hatch Act (which prohibits political activity by a federal employee) and failure to remove the poster could result in discipline and/or termination. Unbeknownst to Payne, Lacking's directive had come down through the chain of command and was at the behest of Bobbi Stark, Director, Human Resources.

         Although Payne complied with Lacking's directive, she vehemently disagreed with the assessment that the flier and/or the posting thereof violated the Hatch Act. Convinced that Lacking was discriminating and/or retaliating against her, Payne set out to prove Lacking wrong. She first reached out to Augustine Ross, who handled human resource matters for the Civilian Personnel Advisory Center (CPAC) at Ft. Polk, for confirmation that Lacking's assessment was incorrect. When that inquiry went unanswered, Payne contacted a Fort Polk Installation attorney for his opinion. Upon receiving the attorney's response on July 19, 2018 that there was no violation of the Hatch Act, Payne quickly forwarded the email response to Lacking.

         This type of reaction by Payne to directives from her supervisor continued through her tenure at ASAP. As she received critiques and corrections from Lacking, she would reach out to Lacking's supervisors, Thomas Gillard and/or Bobbi Stark. The first documented instance in this case was Payne's September 1, 2011, email to both Gillard and Stark claiming she was being stifled as a supervisor; therefore, she said she was seeking other employment. Payne then complained in October 2011 when she learned she was placed on Focused Professional Practice Evaluation (FPPE).[3] Payne immediately blamed Lacking despite the fact it was Dr. Patrick Hayes, the then outgoing Chief of the Department of Behavioral Health at Bayne- Jones Army Community Hospital (BJACH)[4] and the Acting ASAP Clinical Consultant, who made the recommendation. Although the quality assurance he conducted was in follow up to Lacking's request, he conducted an independent review of Payne's charts and found sufficient deficiencies in four of the seven charts he reviewed. Based upon this 60% rate of deficiency by a supervisor, Dr. Hayes recommended to the BJACH Credentialing Committee and BJACH Commander that Payne be placed on FPPE. The Committee and Commander then reviewed the recommendation and voted to place Payne on FPPE for three months and to relieve her of her supervisory duties during that time.

         These assessments and the actions taken by Lacking were further corroborated by Scott Mims, IMCOM's Clinical Quality Program Manager, who conducted an on site inspection in the fall of 2011. While he did not remember Payne specifically from his review, he did recall that the compliance with IMCOM's standards at Ft. Polk ASAP was between 15% and 20% where a rating of 90% was considered minimally acceptable. He further testified that during his visit, he found the ASAP staff members resistant to change (wanting to conduct the clinic under prior MEDCOM protocol), and the clinic lacked consistency, continuity, and failed to meet IMCOM standards of care.

         Unwilling to accept that her performance as a supervisor was deficient, Payne contacted the EEO on October 20, 2011, to report she was being discriminated against by Lacking based on race. In support of her claim, she referenced the September 12, 2011, letter of warning issued to her by Lacking for failing to follow the orders given to her by Lacking, her placement on FPPE, and being relieved of her supervisory duties.

         The EEO report conducted in response to this informal complaint indicated the EEO counselor contacted "management" about the complaint. Lacking and Stark denied knowledge of this initial contact with the EEO while Gillard testified that he received numerous complaints from and regarding Payne. Therefore, we assume for discussion purposes that the referenced "management" was likely Mr. Gillard.

         Mr. Gillard stated that he investigated the complaints he received from Payne as well as the many complaints lodged against her. Despite his investigation, he did not find improper action undertaken by Lacking. Instead he noted Payne's deficient performance and Lacking's continued efforts to attain compliance with IMCOM protocol. Among those who complained about Payne was one Karla Gralapp, a fellow counselor, who credibly testified at trial on behalf of Payne. Ms. Gralapp's testimony was that she viewed Payne as antagonistic during her tenure at ASAP. Once Payne was gone, however, she began to see that Lacking insisted upon having the office run her way at all times, and that if one crossed Lacking, she would quickly fall out of favor and be unfairly watched for any mistakes. Nevertheless, Ms. Gralapp did not see Lacking's tyrannical style to be based on discriminatory animus.

         Despite Payne's continued counseling by Lacking and her placement on FPPE, by December 2011, it appeared to Lacking that Payne's performance was not improving. Accordingly, during this time, Lacking contacted the Credentialing Committee who voted to extend Payne's FPPE through March 31, 2012. Additionally, Lacking conducted Payne's annual review. While Lacking's prior review of Payne as a Counseling Psychologist resulted in a favorable review, this review by Lacking of Payne as a supervisor resulted in an overall assessment of "1", the lowest possible rating. In light of that assessment, Payne became alarmed that she might be terminated.

         On February 6, 2018, Payne filed her formal complaint with the EEO claiming reprisal for contacting their office on October 20, 2011, regarding the alleged race discrimination and harassment. Therein, she cited the letter of warning, and her FPPE status as evidence. She also added new allegations regarding an incident where she claimed she was "set up" by Lacking to fail and given an overall rating of 1 on her performance review.

         Within a week of the EEO filing, Lacking showed up at Payne's office door. Lacking testified the reason was that she was responding to an email from Payne requesting clarification on the use of a certain IMCOM form. Payne contrarily testified she believed Lacking was there to fire her. Regardless, the women both recount Payne's immediately going on the defensive; demanding Lacking leave her office; and, yelling that she knew Lacking was trying to fire her. When Lacking did not leave, Payne approached the door and closed it in Lacking's face. Because of this unprofessional behavior display by Payne, Lacking issued a letter of warning generating further distrust between the two.

         The following month, Payne's probationary period as a supervisor expired. Faced with her continued shortcomings and failure to successfully complete the probationary period, Payne was returned to her position as Counseling Psychologist. However, the demotion was in title only. There was no demotion in pay or benefits as far as the record shows.

         In April 2012, tensions rose again when Payne violated a direct order issued by Lacking to transfer a patient to her co-worker Karla Gralapp. According to Payne, the patient was in a fragile state, trusted only her, and she feared that the patient might hurt himself if transferred. However, the testimony at trial established that once Payne had stabilized the patient, she followed up with him directly. It was this follow up which crossed the line and was a direct violation of Lacking's orders. Accordingly, again, after consulting with Gillard and Ross, Lacking decided that she must issue a formal disciplinary act by issuing a Letter of Reprimand.

         During this time and continuing into the summer, Payne pursued her EEO charge and continued to voice that she was being harassed, discriminated against, and subjected to continuing reprisal. Gillard and Stark continued to look into the matter. Based on all of the continued complaint by and against Payne, Stark decided to bring in an EEO counselor to conduct a "sensing session." The expectation was that the EEO counselor would be able to speak to ASAP staff members and get a feel for the problem in the office, in hopes of resolving the obvious conflict.

         The session held on July 19, 2011, was slow to start, so Payne initiated the conversation by acknowledging she was the reason the session was called. Once the ice was broken, the group discussed issues related to poor morale, favoritism, inappropriate dress, Lacking's style of ruling with an iron fist, and race discrimination. The EEO counselor listened to all of the complaints but in a report to Stark recited no evidence of race discrimination. However, Payne continued to pursue her complaints and, according to Stark, demanded that she be transferred from Lacking's supervision.

         As no other supervisor existed within the ASAP program, Stark determined that Payne should be moved to the Directorate of Family Morale, Welfare, and Recreation, Army Community Services. In a memorandum to Payne dated September 17, 2012, Stark detailed the set of duties of her new detail including, among other things, that she schedule, prepare for, and conduct classes related to stress management, anger management, marriage enrichment/education, parenting education, the relationship between alcohol/other substance abuse and domestic violence, communication, and other family life skills building classes. Stark further advised Payne that she was to report for duty the following morning; however, Payne was a no call, no show. When Stark inquired via email, Payne advised that she had an appointment with EEO which lasted most of the day. She further advised that she planned to go the following day to the ASAP office and then return to the EEO for a follow up appointment.

         Payne asked Kristine Capitano, her new supervisor, almost immediately, for extended leave. Initially, Capitano assented; however, she later learned that because the leave exceeded 40 hours, Stark would need to approve the leave. Accordingly, Capitano approved Payne's request for leave through ...


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