Gilliard v. Gruenberg

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHANIE A. GILLIARD, :
:
Plaintiff, : Civil Action No.: 16-2007 (RC)
:
v. : Re Document Nos.: 46, 47
:
JELENA MCWILLIAMS, Chairman, Federal :
Deposit Insurance Corporation, et al., 1 :
:
Defendants. :
MEMORANDUM OPINION
DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER; DENYING PLAINTIFF’S MOTION
FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I. INTRODUCTION
Plaintiff Stephanie A. Gilliard seeks a protective order, a temporary restraining order, and
a preliminary injunction authorizing her to decline to hand over to her employer, the Federal
Deposit Insurance Corporation (“FDIC”), audio tapes containing conversations between her and
her supervisors that she recorded surreptitiously while at work. Ms. Gilliard also asks this Court
to bar the FDIC from taking disciplinary action against her for making the recordings and for
refusing to allow her employer to access them. Finding that Ms. Gilliard has not demonstrated
that the relief that she seeks is warranted, the Court denies her motions.
1
Pursuant to Federal Rule of Civil Procedure 25(d), the Court substitutes Jelena
McWilliams as a defendant.
1
II. BACKGROUND
Ms. Gilliard, an African-American woman, is a Senior Administrative Specialist in the
Administrative Management Section (“AMS”); Strategic Planning, Budget, and Reporting
Branch (“SPBR”); Division of Risk Management Supervision (“RMS”) at the FDIC. See 2d
Am. Comp. ¶¶ 4, 6–7, ECF No. 53. She has worked at the FDIC since June 2011. See Gilliard
Affidavit at 1, Ex. A, Def.’s Combined Opp’n to Pl.’s Mot. for Protective Order & Mot. for
Temp. Restraining Order & Prelim. Injunction (“Def.’s Opp’n”), ECF No. 52-1. According to
Ms. Gilliard, her tenure has been marked by “years” of “harassment, discrimination, infliction of
severe emotional distress, threats, disparate treatment and more from her supervisors.” Mot. for
Protective Order at 3, ECF No. 46.
Ms. Gilliard filed this action in October 2016. See Compl., ECF No. 1. In her complaint,
she alleged that during a period from about March 2013 to December 2014, she suffered a host
of alleged adverse employment actions—the denial of several promotions, the loss of
employment responsibilities, unfavorable performance reviews, and exposure to a hostile work
environment—due to racial discrimination and/or as retaliation for her protected EEO activity.
See generally 2d Am. Compl. Many of Ms. Gilliard’s claims focus on her interactions with Ms.
Janice Butler (the former Chief of AMS and Ms. Gilliard’s former first-line supervisor) and Mr.
Phillip Mento (the former Associate Director of SPBR, RMS and Ms. Gilliard’s former second-
line supervisor). See 2d Am. Compl. ¶¶ 6–7, 10–30. One such allegation states that Ms. Butler
and Mr. Mento learned that Ms. Gilliard had been recording conversations she had with them
and that she planned to use the recordings to support her claims before the Equal Employment
Office. See 2d Am. Compl. ¶¶ 45, 67–69. Purportedly to stop her from doing so, on or about
October 29, 2014, Ms. Butler and Mr. Mento ordered Ms. Gilliard not to record conversations
2
she had with any FDIC employees and warned her that she would face disciplinary action if they
learned that she had defied their order. See 2d Am. Compl. ¶ 68. Ms. Gilliard asserted that the
order was given as retaliation for her engagement in protected EEO activity. See 2d Am. Compl.
¶ 69. In addition, Ms. Gilliard contended that the command constituted part of a hostile work
environment. See 2d Am. Compl. ¶ 45.
Shortly after Ms. Gilliard filed her complaint, Defendant FDIC moved to have it
dismissed. See generally Def.’s Mot. to Dismiss or, in the Alternative for Summ. J., ECF No.
18. While Defendant’s motion was pending, Ms. Gilliard filed the motions for a protective order
and for a temporary restraining order and preliminary injunction that are presently before the
Court. 2 See generally Mot. for Protective Order; Mot. for Temp. Restraining Order & Prelim.
Injunction (“Mot. for PI”), ECF No. 47.
Ms. Gilliard’s motions concern events that occurred in 2017 and early 2018. In July
2017, Ms. Gilliard emailed Maureen Sweeney, the Deputy Director of RMS, seeking “medical
leave due to stress” and asking for “intervention” in Ms. Gilliard’s dealings with Mr. Mento. See
Email from Gilliard to Sweeney (July 17, 2017), Ex. H, ECF No. 52-8. Ms. Gilliard asserted that
Mr. Mento “continued to lie to [her] about [her] performance expectations, milestones and
instructions,” and contended that when around Mr. Mento, she “fear[ed] for her physical safety”
and “fe[lt] like a victim of rape.” Email from Gilliard to Sweeney (July 17, 2017), Ex. H. The
next month, Ms. Gilliard followed up with Ms. Sweeney, suggesting that she could provide audio
tapes of meetings during which Mr. Mento had purportedly lied to and berated her. Email from
Gilliard to Sweeney (Aug. 23, 2017), Ex. J, ECF No. 52-10.
2
The Court has since resolved the FDIC’s motion, dismissing some of Ms. Gilliard’s
claims and denying summary judgment as premature. See Gilliard v. Gruenberg, No. 16-2007,
2018 WL 1471949, at *7–20 (D.D.C. Mar. 26, 2018).
3
Days later, Mr. Joseph Masisak, the Assistant Director for Labor and Employee Relations
at the FDIC, emailed Ms. Gilliard, noting that his staff was investigating her recent complaint
and asking for evidence that would assist in the investigation. See Email from Masisak to
Gilliard (Aug. 25, 2017), Ex. K, ECF No. 52-11. Asserting that she had “endured . . . more than
4 years of [Mr.] Mento ‘trumping’ up charges against [her],” Ms. Gillard declined to turn over
any evidence in her possession, but noted that she would hand over her recordings for purposes
of entering a settlement agreement. See Email from Gilliard to Masisak (Aug. 25, 2017), Ex. K,
ECF No. 2-11. In response, Mr. Masisak repeated his request, explaining that the FDIC’s Anti-
Harassment Program requires employees to cooperate in fact-finding inquiries concerning
allegations of harassment, that Ms. Gilliard’s email to Ms. Sweeney suggested that she possessed
audio recordings that revealed Mr. Mento’s harassment, and that the tapes would assist the
investigators in coming to the most appropriate outcome. See Email from Masisak to Gilliard
(Aug. 30, 2017), Ex. L, ECF No. 52-12.
Because, in Ms. Gilliard’s view, “it was clear that the [FDIC] was only concerned with
protecting itself,” instead of immediately submitting her audio tapes to Mr. Masisak, she filed a
workers’ compensation claim with the Department of Labor’s Officer of Workers’
Compensation Programs. Reply to Def.’s Combined Opp’n to Pl.’s Mot. for Protective Order &
Mot. for Temp. Restraining Order & Prelim. Injunction (“Pl.’s Reply”) at 4, ECF No. 55; see
also Notice of Occupational Disease and Claim for Compensation (“Workers’ Comp. Claim”) at
1 (Sept. 1, 2017), Ex. O, ECF No. 52-15. In her claim, Ms. Gilliard alleged, among other things,
that in 2013, Mr. Mento had “disparaged” her and had “verbally abused and assaulted” her,
causing her to suffer post-traumatic stress disorder. Workers’ Comp. Claim at 1. Ms. Gilliard
4
wrote that because she feared that no one would believe her assertions, she had recorded
conversations with Mr. Mento. See Workers’ Compl. Claim at 1.
Before the Department of Labor resolved Ms. Gilliard’s workers’ compensation claim,
Ms. Gilliard supplied Mr. Masisak and others with a few audio recordings that captured meetings
between Ms. Gilliard and Mr. Mento. See Email from Gilliard to Masisak, et al. (Oct. 17, 2017),
Ex. M, ECF No. 52-13; see also Email from Masisak to Gilliard (Oct. 18, 2017) (requesting any
additional audio recordings that might support Ms. Gilliard’s claims), Ex. N, ECF No. 52-14.
According to emails accompanying the audio recordings, they were captured at meetings that
took place in early 2017. See, e.g., Email from Gilliard to Masisak, et al. (Oct. 17, 2017), Ex. M
at 1. Thereafter, Ms. Gilliard received notice denying her workers’ compensation claim. See
Notice of Decision, Ex. BB, ECF No. 52-28.
Nearly two months after the denial of Ms. Gilliard’s workers’ compensation claim,
Benjamin Vaughn, the Acting Associate Director of SPBR, sent Ms. Gilliard a memorandum
ordering her to attend an investigatory interview about the allegations that she had made in her
claim about Mr. Mento. See Order to Participate in Investigatory Interview, Ex. U, ECF No. 52-
21. The memorandum warned that “[f]ailure to fully cooperate and respond truthfully could lead
to a disciplinary action up to and including removal from federal service.” Order to Participate
in Investigatory Interview, Ex. U. Though Ms. Gilliard regarded the request as curious because
her claim had already been denied, she nonetheless attended the meeting. See Mot. for
Protective Order at 6; Admin. Inquiry (Feb. 21, 2018) at 1, Ex. V, ECF No. 52-22.
At the meeting, an employee from FDIC’s Labor and Employees Relations section first
asked Ms. Gilliard several questions about her allegations. See Admin. Inquiry (Feb. 21, 2018),
at 1–3, Ex. V. Then, Mr. Vaughn ordered Ms. Gilliard to provide copies of all audio recordings
5
featuring any FDIC employees that she had made after October 29, 2014, without obtaining
permission to record. See Admin. Inquiry (Feb. 21, 2018) at 1–4, Ex. V; see also Order to
Provide Audio Files, Ex. W, ECF No. 52-23. Mr. Vaughn offered Ms. Gilliard three options for
providing the audio recordings: (1) she could email a complete, unedited copy of each audio file;
(2) she could provide her phone to the FDIC’s Division of Internet Technology (“DIT”), and DIT
would make a copy of each audio file; or (3) she could provide her phone to a mutually
acceptable transcription service, which would provide a transcript of each audio recording at the
FDIC’s expense. See Admin. Inquiry (Feb. 21, 2018) at 4, Ex. V; see also Order to Provide
Audio Files, Ex. W. Mr. Vaughn ordered Ms. Gilliard to elect one of the three options by close
of business on the day after the meeting. See Order to Provide Audio Files, Ex. W. And he
directed her to provide the audio files no later than one day after she selected an option. See
Order to Provide Audio Files, Ex. W. At the meeting, Ms. Gilliard asserted that she would not
comply with the order. See Admin. Inquiry (Feb. 21, 2018) at 4, Ex. V.
When Ms. Gilliard failed to comply with the deadlines that Mr. Vaughn had established,
he sent her another order once again demanding that she produce the recordings. See generally
Second Order to Produce Recordings, Ex. X, ECF No. 52-24. Mr. Vaughn’s memorandum
stated that Ms. Gilliard’s refusals constituted “insubordination” and that her “misconduct will
result in a proposal for disciplinary action.” Second Order to Produce Recordings, Ex. X. The
memorandum addressed a host of concerns that Ms. Gilliard had voiced about the order. See
Second Order to Produce Recordings, Ex. X. In addition, it provided three reasons for the
FDIC’s request: (1) to obtain information necessary to perform a complete investigation of Ms.
Gilliard’s allegations against Mr. Mento, (2) because the audio recordings showed that Ms.
Gilliard had violated the October 2014 order directing her not to surreptitiously record her
6
conversations with FDIC employees, and (3) because the recordings might contain confidential
information about FDIC employees. Second Order to Produce Recordings at 2, Ex. X.
Ms. Gilliard again declined to comply with Mr. Vaughn’s order. Instead, she filed a
Motion for a Protective Order and a Motion for Temporary Restraining Order and Preliminary
Injunction, both of which are presently before this Court. See generally Mot. for Protective
Order; Mot. for PI. Ms. Gilliard asks this Court to “prevent [the FDIC] from compelling [her] to
give [it] copies of audio tape recordings of conversations between her and FDIC employees” and
to “protect[]” her from disciplinary action related to her refusal to turn over the recordings. Mot.
for Protective Order at 1; see also Mot. for PI at 1. Ms. Gilliard’s motions are now ripe for
decision.
III. ANALYSIS
A. Plaintiff’s Motion for a Protective Order is Denied
Ms. Gilliard asks this Court to enter a protective order forbidding the FDIC from
compelling her to turn over copies of audio tapes containing conversations between her and her
supervisors that she recorded surreptitiously while at work. See Mot. for Protective Order at 1.
Ms. Gillard also requests “protect[ion] . . . from the Defendant taking disciplinary action against
her for making the recordings and/or refusing to allow Defendant access to them.” Mot. for
Protective Order at 1. The Court concludes that Ms. Gilliard has not met her burden of showing
good cause necessary for entry of a protective order and, thus, denies her motion.
Federal Rule of Civil Procedure 26(b) allows for “discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”
Fed. R. Civ. P. 26(b)(1); see also In re England, 375 F.3d 1169, 1177 (D.C. Cir. 2004) (“The
Federal Rules of Civil Procedure encourage the exchange of information through broad
7
discovery.”) However, under Federal Rule 26(c), a judge may, “for good cause,” issue a
protective order limiting, among other things, the scope of discovery or the parties’ ability to
disseminate information discovered during litigation “to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1).
To show good cause for entry of a protective order, the moving party “must articulate specific
facts to support its request and cannot rely on speculative or conclusory statements.” Friends of
the Earth v. U.S. Dep’t of the Interior, 236 F.R.D. 39, 41 (D.D.C. 2006) (quoting Low v.
Whitman, 207 F.R.D. 9, 10–11 (D.D.C. 2002)). “Trial courts have ‘broad discretion . . . to
decide when a protective order is appropriate and what degree of protection is required.’”
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 249 F. Supp. 3d 516, 520 (D.D.C.
2017) (omission in original) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984)). In
deciding whether to limit or deny discovery under Rule 26(c), courts balance “the
burdensomeness to the moving party against the requestor’s need for, and relevance of the
information sought.” Doe v. Provident Life & Acc. Ins. Co., 247 F.R.D. 218, 221 (D.D.C. 2008).
Courts may also consider a variety of other factors, including “the harm which disclosure would
cause to the party seeking to protect the information.” Burka v. U.S. Dep’t of Health & Human
Servs., 87 F.3d 508, 517 (D.C. Cir. 1996); see also United States v. Microsoft Corp., 165 F.3d
952, 960 (D.C. Cir. 1999) (“The ‘good cause’ standard in the Rule is a flexible one that requires
an individualized balancing of the many interests that may be present in a particular case.”).
Assuming that the FDIC’s order constituted a discovery request, 3 the Court finds that Ms.
Gilliard has not shown the good cause necessary for entry of a protective order. Ms. Gilliard
3
The parties disagree about whether the FDIC’s demand constituted an informal
discovery request or an instruction related primarily to the internal affairs of the agency. The
Court certainly agrees with the FDIC that Title VII does not invite the judiciary to micromanage
8
first urges that a protective order is warranted because she “had a right to make the recordings.”
Mot. for Protective Order at 1. She apparently bases this argument on the fact that District of
Columbia law does not criminalize the surreptitious recording of a conversation by a party to that
conversation. See Email from Gilliard to Polley (Oct. 30, 2014) (making such an argument in
response to an order directing her to cease surreptitiously recording), Ex. F, ECF No. 52-6.
However, the Court sees no reason why the legality of recording in the District of Columbia
might preclude an employer from restricting its employees from recording or might suffice as a
basis for barring an employer from demanding recordings made in defiance of a direction not to
record without permission. Furthermore, Ms. Gilliard neglects to explain why the legality of her
conduct might make turning over the tapes annoying, embarrassing, oppressive, expensive, or
might cause undue burden.
an agency’s internal affairs. See, e.g., DeJesus v. WP Co. LLC, 841 F.3d 527, 534 (D.C. Cir.
2016) (noting that courts “are not ‘a super-personnel department that reexamines an entity’s
business decisions’”); Def.’s Opp’n at 14 (arguing that a court should hesitate to interfere with
federal agency’s personnel actions). And the Court also recognizes that Rule 26(c) only affords
district courts the power to regulate discovery; it does not permit a court to purport to control the
use and dissemination of information obtained through means other than discovery. See In re
Rafferty, 864 F.2d 151, 155 (D.C. Cir. 1988) (concluding that a protective order impermissibly
regulated the disclosure of information that a party had obtained before litigation began); see
also, e.g., Seattle Times Co., 467 U.S. at 34 (“[T]he party may disseminate the identical
information covered by the protective order as long as the information is gained through means
independent of the court’s processes.”). But the Court hesitates to suggest that a demand upon
an employee to supply information relevant to a pending Title VII action is undeniably not a
discovery request so long as the demand comes in the course of the employee’s work duties. Cf.
E.E.O.C. v. City of Joliet, 239 F.R.D. 490, 492–94 (N.D. Ill. 2006) (entering a protective order in
a Title VII action barring a defendant-employer from compelling an employee to submit
information about his immigration status that the employer requested only after the plaintiff filed
his lawsuit and that had minimal relevance to the pending dispute). Because the Court finds that
Ms. Gilliard has not shown good cause, the Court need not resolve this dispute.
9
Next, Ms. Gilliard asserts that a protective order is warranted because the FDIC is not
entitled to the recordings outside of the normal course of discovery. 4 See Mot. for Protective
Order at 1, 7–11. According to Ms. Gilliard, the FDIC seeks to jump the gun on accessing the
tapes in order to “know exactly what other damaging evidence” Ms. Gilliard has to support her
claims. Mot. for Protective Order at 7. As a threshold matter, the parties have now begun
discovery, diminishing any force behind the argument that a protective order delaying the
FDIC’s access to the tapes is warranted at this point. Furthermore, it is not at all clear how the
purportedly premature look at relevant evidence might prejudice Ms. Gilliard. The Court is not
persuaded that the FDIC’s demand might cause annoyance, embarrassment, oppression, expense,
or undue burden to Ms. Gilliard of the sort that would justify entry of a protective order.
Ms. Gilliard next contends that the timeline that the FDIC offered her for submitting the
tapes was “ridiculous” and “definitely oppressive” and that the options for submitting them were
“impracticable, unworkable, and unenforceable.” Mot. for Protective Order at 8–9. But it
appears to this Court that the FDIC offered significant flexibility with respect to options for
turning over the tapes. See Def.’s Opp’n at 20–22. Though Ms. Gilliard declares that the agency
unreasonably asked her to turn over more than three years’ worth of recordings in a matter of
days and ordered her to do so using methods that might expose her other communications—
including privileged communications with her attorney—she neglects to even clarify how many
tapes she recorded over that time period, how long it might reasonably take her to produce the
4
Though Ms. Gilliard suggests vaguely that she “may never have to turn over” some of
the tapes, she fails to explain why this might be so. Mot. for Protective Order at 7. And the
Court struggles to square this assertion with Ms. Gilliard’s contentions that she made the tapes
for the purpose of supporting her claims and that the tapes contain “damaging evidence.” See
Mot. for Protective Order at 4, 7. Thus, it appears to the Court that Ms. Gilliard’s argument in
favor of a protective order hinges largely on whether the timing of the demand was appropriate.
10
tapes, and whether she could have offered other methods for producing the tapes that would have
been unobjectionable to her and to the agency. See Mot. for Protective Order at 9, 12. Thus, the
Court has no basis for saying that the request was unreasonable or unworkable.
Perhaps more importantly, though, Ms. Gilliard fails to explain why the purported
“impracticabil[ity]” of the FDIC’s timeline might justify an order entirely barring it from
demanding the tapes and prohibiting it from pursuing disciplinary action against her for refusing
to provide the tapes. To the extent that Ms. Gilliard could not comply with the February 2018
order to submit the tapes in a matter of days, she has now had substantial notice that her
employer expects her to turn over the tapes and plenty of opportunity to devise a plan for
submitting them. The Court disagrees with Ms. Gilliard that any deviation from a court-imposed
discovery schedule might warrant her requested protective order.
Finally, Ms. Gilliard contends that the FDIC only requested the tapes to harass her and to
retaliate against her for bringing claims against the agency. See Mot. for Protective Order at 2;
Pl.’s Reply at 2–3. However, this bald assertion does not justify the entry of a protective order.
For one thing, Ms. Gilliard does not appear to contest that the audio tapes are relevant to this
matter, and she has not shown that the discovery request is overbroad. See Mot. for Protective
Order at 4, 7. Indeed, Ms. Gilliard contends that she recorded the tapes with an eye toward using
them to support her claims. See Mot. for Protective Order at 4, 7. As a general matter, courts are
hesitant to deny a party access to relevant discovery absent a showing that the request is
“irrelevant, unduly burdensome, or otherwise improper.” Andrades v. Holder, 286 F.R.D. 64, 66
(D.D.C. 2012); see also, e.g., Cartagena v. Centerpoint Nine, Inc., 303 F.R.D. 109, 113–14
(D.D.C. 2014) (granting a motion to compel discovery regarding plaintiff’s immigration status
because the matter was “highly relevant to a factual dispute at the heart of th[e] case”). Ms.
11
Gilliard has fallen well short of showing that discovery regarding the audio recordings should be
barred.
In addition, as explained in greater detail below, the FDIC offers three non-retaliatory
reasons for its demand. Specifically, the FDIC explained that it demanded the tapes (1) to obtain
information necessary to perform a complete investigation of Ms. Gilliard’s allegations against
Mr. Mento, (2) because the audio recordings showed that Ms. Gilliard had violated the October
2014 order directing her not to surreptitiously record her conversations with FDIC employees,
and (3) because the recordings might contain confidential information about FDIC employees.
Second Order to Produce Recordings at 2, Ex. X. Ms. Gilliard claims that these explanations are
pretextual, see Pl.’s Reply at 2–6, however, she offers little more than bald statements to support
her position. In sum, the Court concludes that Ms. Gilliard has not shown good cause necessary
for entry of a protective order and, therefore, it denies her motion.
B. Plaintiff’s Motion for a Temporary Restraining Order and Preliminary Injunction is
Denied
Having rejected Ms. Gilliard’s request for a protective order, the Court next considers her
Motion for Temporary Restraining Order and Preliminary Injunction. “[A] preliminary
injunction is an injunction to protect [the movant] from irreparable injury and to preserve the
court’s power to render a meaningful decision after a trial on the merits.” Select Milk Producers,
Inc. v. Johanns, 400 F.3d 939, 954 (D.C. Cir. 2005) (quoting 11A Charles Alan Wright, Arthur
R. Miller, & Mary Kay Kane, Federal Practice and Procedures § 2947 (2d ed. 1992)). In the
context of a Title VII action, such an injunction may be appropriate to ward against retaliation or
reprisal by an employer and to “ensure the integrity and effectiveness of Title VII proceedings.”
Wagner v. Taylor, 836 F.2d 566, 573–74 (D.C. Cir. 1987). “[T]he decision to grant injunctive
relief is a discretionary exercise of the district court’s equitable powers.” John Doe Co. v.
12
Consumer Fin. Prot. Bureau, 235 F. Supp. 3d 194, 201 (D.D.C. 2017) (quoting Sea Containers
Ltd. v. Stena AB, 890 F.2d 1205, 1209 (D.C. Cir. 1989)). A preliminary injunction is an
“extraordinary remedy,” and one is “never awarded as of right.” Winter v. Nat’l Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008). To warrant preliminary injunctive relief, the moving party
“must establish that [s]he is likely to succeed on the merits, that [s]he is likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of the equities tips in h[er]
favor, and that an injunction is in the public interest.” Id. at 20. “The standard that applies to
preliminary injunctions also applies to temporary restraining orders.” Experience Works, Inc. v.
Chao, 267 F. Supp. 2d 93, 96 (D.D.C. 2003).
In her motion, Ms. Gilliard asks this Court to enter a temporary restraining order and
preliminary injunction barring the FDIC from “taking disciplinary action against [her] for audio
recording conversations . . . and/or for her failure to turn over any audio recordings of
conversations between her and any of Defendant’s employees in her possession.” Mot. for PI at
1. Ms. Gilliard appears to base her request on her claim that the FDIC ordered her to turn over
the audio tapes—and threatened disciplinary action if she refused to do so—as retaliation for her
protected EEO activity. 5 See Mot. for PI at 8–10. As explained below, the Court finds that Ms.
Gilliard has not shown that she is likely to succeed on the merits of her claim, has not shown that
5
The FDIC does not appear to dispute this Court’s authority to issue Ms. Gilliard’s
requested injunction. See Def.’s Opp’n at 29–30. But see Def.’s Opp’n at 31 & n.36. Generally,
a plaintiff must exhaust her administrative remedies before bringing a Title VII claim to this
Court. See Sataki v. Broad. Bd. of Governors, 733 F. Supp. 2d 22, 43 (D.D.C. 2010). However,
in Wagner v. Taylor, 836 F.2d 566 (D.C. Cir. 1987), the D.C. Circuit held that “federal district
courts are authorized to afford interim injunctive relief against retaliatory transfers and other acts
of reprisal while the administrative and judicial processes are ongoing.” Id. at 570. But see
Sataki, 733 F. Supp. 2d at 42–43 (explaining that a district court may only entertain a request for
injunctive relief that seeks to preserve the status quo). Because this Court construes Ms.
Gilliard’s request as one to maintain the status quo, the Court finds that it has the authority to
grant relief.
13
she would likely suffer irreparable harm absent entry of a temporary restraining order and
preliminary injunction, and has not shown that the balancing of the equities and public interest
considerations tip in her favor. Accordingly, the Court denies her motion.
1. Plaintiff Has Not Shown That She is Likely to Succeed on the Merits of Her Claim
The Court must first consider whether Ms. Gilliard has shown that she is likely to
succeed on the merits of her claim that the FDIC demanded that she turn over her surreptitiously
recorded audio tapes—and vowed disciplinary action for her refusal to do so—as retaliation for
her protected EEO activity. 6 Ms. Gilliard asserts that she is likely to succeed on the merits of her
claim because (1) District of Columbia law features no prohibition barring a party to a
conversation from recording without the permission of others; (2) the FDIC has no agency-wide
policy barring such recording; (3) the agency’s reasons for forbidding the taping and for ordering
her to turn over the tapes are farcical and its invocation of those reasons in this litigation are
pretext; and (4) the methods and timeline that the agency designed for her to submit the
recordings were “impracticable” and “unfathomable,” in part because the plan could have
resulted in the exposure of privileged communications between Ms. Gilliard and her attorney that
are kept on the same device on which Ms. Gilliard has kept the requested audio recordings. See
Mot. for PI at 9–11; see also Pl.’s Reply at 2–3, 9–13. Ms. Gilliard also asserts that she has
6
The parties express some confusion about which claim Ms. Gilliard must show that she
is likely to succeed on to meet her burden. See Def.’s Opp’n at 26 (noting that “it is less than
clear upon which claim Plaintiff believes she is likely to succeed”). Both parties address whether
Ms. Gilliard is likely to succeed on the hostile work environment claim asserted in her Second
Amended Complaint, which referenced Ms. Butler’s and Mr. Mento’s October 2014 order to Ms.
Gilliard that she cease surreptitiously recording her colleagues. See Def.’s Opp’n at 26–30; Pl.’s
Reply at 16–20; 2d Am. Compl. ¶ 45. Both parties also consider whether Ms. Gilliard has shown
that the February 2018 demand that Ms. Gilliard turn over the audio tapes was retaliatory. See
Def.’s Opp’n at 31–36; Pl.’s Reply at 2–6, 18. Consistent with Wagner, the Court concludes that
its analysis should focus primarily on the latter. See Wagner, 836 F.2d at 576 (assessing
purported acts of reprisal that occurred after the filing of Plaintiff’s complaint).
14
already turned over any audio recordings in her possession that might be relevant to the
allegations that she included in her workers’ compensation claim about Mr. Mento, and thus, the
FDIC has no legitimate reason for requesting any other recordings. See Pl.’s Reply at 9, 21. The
agency supplies nonretailiatory explanations for its actions and argues that Ms. Gilliard has not
shown that any of the agency’s explanations are pretextual. See Def.’s Opp’n at 30, 32–33. The
Court agrees with the FDIC that Ms. Gilliard has not supplied evidence suggesting that the
agency’s explanations for its actions lack credence. Accordingly, the Court concludes that Ms.
Gilliard has failed to show that she is likely to succeed on the merits of her retaliation claim.
Title VII of the Civil Rights Act of 1964 bars retaliation against an employee or job
applicant because that individual has “made a charge, testified, or participated in any manner in
an investigation, proceeding, or hearing” under Title VII. 42 U.S.C. § 2000e–3(a). In the
absence of direct evidence, a claim of retaliation is analyzed under the three-step, burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the
McDonnell Douglas framework, the plaintiff is first required to make out a prima facie claim of
retaliation. See id. at 802. To do so, the claimant must show that she (1) “engaged in statutorily
protected activity; (2) that [s]he suffered a materially adverse action by h[er] employer; and (3)
that a causal link connects the two.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009).
Once the plaintiff establishes a prima facie case of retaliation, the burden of production shifts to
the defendant to supply legitimate, nonretaliatory reasons for its actions. See Baloch v.
Kempthrone, 550 F.3d 1191, 1199 (D.C. Cir. 2008). After the employer sets out a nonretaliatory
reason for the employment action, the burden shifts back to the employee to “produce sufficient
evidence that would discredit those reasons and show that the actions were retaliatory.” Id. at
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1200. “A plaintiff can meet this burden by casting doubt on the objective validity of the
employer’s explanation.” Morris v. McCarthy, 825 F.3d 658, 671 (D.C. Cir. 2016).
Ms. Gilliard has not shown that she is likely to succeed on the merits of her retaliation
case because she has not produced sufficient evidence that would discredit the FDIC’s
nonretaliatory explanations for ordering her to cease surreptitiously recording her colleagues, for
demanding that she turn over audio tapes that she recorded in violation of that order, and for
suggesting that it would pursue disciplinary action against Ms. Gilliard if she refuses to hand
over the tapes. First, with respect to the agency’s October 2014 order that Ms. Gilliard cease
recording her colleagues, the agency explained to Ms. Gilliard that it issued the order because
“[t]he FDIC has an interest in fostering trust and maintaining communication channels required
for effective workplace relationships and for accomplishing the work of the FDIC.” Email from
Polley to Gilliard (Nov. 6, 2014), Ex. F, ECF No. 52-6. The agency gave Ms. Gilliard the
instruction as soon as it became aware that she had been recording FDIC meetings without the
consent of other parties. See Email from Polley to Gilliard (Nov. 6, 2014), Ex. F.
Ms. Gilliard confirms that she recorded conversations with her colleagues and explains
that she did so in an effort to gather evidence to support her Title VII claims. See Mot. for PI at
5. She disputes the agency’s rationale for ordering her to cease recording. According to Ms.
Gilliard, the FDIC’s proffered explanation is “a farce and without merit” because “[c]learly,
there is no trust between the Plaintiff and Mr. Mento and other FDIC employees.” Mot. for PI at
9. She notes that the FDIC has no agency-wide policy barring recording, and that her conduct
was not unlawful. See Mot. for PI at 9–11. Ms. Gilliard also appears to argue that the agency’s
true reason for giving the order was to prevent her from gathering evidence to support her EEO
claims. See Mot. for PI at 14; see also Email from Gilliard to Polley (Oct. 30, 2014), Ex. F.
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Ms. Gilliard relies solely on speculation, and fails to offer any evidence to rebut the
agency’s nonretalitory explanation for its order. Ms. Gilliard’s contention that the work
environment lacked trusting relationships seems to support—not undermine—the FDIC’s
position that it ordered her to stop recording her colleagues to build trust in the workplace. And
Ms. Gilliard’s other assertions are equally unavailing. First, Ms. Gilliard fails to explain why the
mere fact that her conduct is not legally barred might preclude her employer from nonetheless
barring the conduct in the workplace for legitimate, nonretalitory reasons. Second, that the FDIC
has no agency-wide policy barring recording does not show that it ordered Ms. Gilliard to stop
recording as retaliation for her protected EEO activity. The agency issued this order shortly after
discovering that Ms. Gilliard had been recording meetings with her colleagues. See Email from
Butler to Gilliard (Oct. 29, 2014), Ex. F, ECF No. 52-6. Ms. Gilliard points to no other
employee who was also found to be recording, let alone identifies anyone else who the agency
permitted to record. Third, Ms. Gilliard does little more than speculate about alternative
motivations for the agency’s direction. This does not satisfy her burden of showing that the
agency’s explanation was pretext.
With respect to the agency’s February 2018 order directing Ms. Gilliard to turn over any
audio tapes that she recorded after October 2014 without her colleagues’ permission, the agency
offered Ms. Gilliard three reasons why it issued the order. See Order to Provide Audio Files, Ex.
W; Second Order to Produce Recordings, Ex. X. The FDIC explained that it had demanded the
tapes (1) to obtain information necessary to perform a complete investigation of Ms. Gilliard’s
allegations against Mr. Mento, (2) because the audio recordings showed that Ms. Gilliard had
violated the October 2014 order directing her not to surreptitiously record her conversations with
FDIC employees, and (3) because the recordings might contain confidential information about
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FDIC employees. See Second Order to Produce Recordings at 2, Ex. X; see also Def.’s Opp’n at
30, 32–35. Ms. Gilliard has failed to supply evidence refuting these reasons.
Ms. Gilliard contends that these explanations are pretext because the agency never before
expressed concern about or initiated an investigation into her earlier allegations of harassment.
See Pl.’s Reply at 2–4. She offers that, instead of pursuing an investigation into the claims
against Mr. Mento that she mentioned in her workers’ compensation claim, the agency sought
the audio recordings to “obtain in advance what [it] believe[s] might be damaging evidence in
the case at bar.” Pl.’s Reply at 4. Ms. Gilliard fails to supply evidence to support her
contentions. First, Ms. Gilliard contends that she asserted other harassment allegations, but they
were not similarly investigated. See Pl.’s Reply at 3–4. The Court finds this argument
unpersuasive. While the FDIC’s Anti-Harassment Program requires supervisors and managers to
“take immediate action to assess whether or not the alleged harassment occurred,” the Program
does not require any specific action or mandate a fact-finding inquiry or investigation into every
allegation. See Anti-Harassment Program at 4–5, Ex. I, ECF No. 52-9. Without more
information about the nature of Ms. Gilliard’s prior complaints and what steps the agency took
with respect to those allegations, the Court cannot conclude that the agency approached these
allegations differently or that any difference in the way that the agency approached these
allegations suggests that the investigation into the claims that were asserted in Ms. Gilliard’s
workers’ compensation claim was pretextual. 7 Second, Ms. Gilliard fails to support her
7
The Anti-Harassment Program in effect at the time that Ms. Gilliard filed her
September 2017, workers’ compensation claim took effect in December 2015. See Anti-
Harassment Program at 4, Ex. I, ECF No. 52-9. The record presently before the Court does not
reveal what sort of anti-harassment program was in place before December 2015 and does not
show whether any of Ms. Gilliard’s prior harassment complaints that are the subject of this
lawsuit—most of which are based on events occurring from a period from March 2013 to
December 2014—were investigated pursuant to the prior policy. However, there is ample
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contention that the real reason for the agency’s request was to procure evidence relevant to this
case sooner than discovery would otherwise allow. Ms. Gilliard offers no indication, for
example, why the agency might have sought this evidence outside of the normal course of
discovery or how she might be at all prejudiced if the agency received the audio tapes in advance
of a court-imposed discovery schedule.
Ms. Gilliard next argues that the agency’s order to turn over the tapes constituted a
“fishing expedition.” Pl.’s Reply at 10. She complains that the methods and timeline that the
agency designed for her to submit the recordings were “impracticable” and “unfathomable,” in
part because the plan could have resulted in the exposure of privileged communications between
Ms. Gilliard and her attorney that are kept on the same device on which Ms. Gilliard keeps the
requested audio recordings. See Mot. for PI at 9–11; see also Pl.’s Reply at 2–3, 9–13. Ms.
Gilliard also asserts that she has already turned over any audio recordings in her possession that
might be relevant to the allegations that she included in her workers’ compensation claim about
Mr. Mento, and thus, the FDIC has no legitimate reason for requesting any other recordings. See
Pl.’s Reply at 9–10, 21.
First, as noted above, Ms. Gilliard criticizes the methods and timeline that the agency
designed for her to submit the tapes, but she fails to moor this criticism to any concrete
information about, for example, how many tapes she might have to produce; how difficult it
would be to produce them; and whether she might be able to produce the recordings on a
timeline and using a method that is aggregable to both her and to the agency. She likewise fails
evidence showing that Ms. Gilliard’s prior harassment allegations were, at the least, investigated
through the EEO process. See, e.g., Acceptance of Formal Discrimination Complaint at 2, Ex.
MM (accepting for investigation a claim that Ms. Gilliard “was subjected to harassment that rose
to the level of a hostile work environment”), ECF No. 18-39.
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to demonstrate why she would not have been able to produce the requested recordings without
exposing communications between her and her counsel. For one thing, if Ms. Gilliard agreed to
email each audio recording to the FDIC—one of the options offered for submitting the tapes—
presumably none of her protected communications would be revealed in the transfer. Second,
Ms. Gilliard’s assertion that she has already produced the audio tapes that she believes relate to
her allegations against Mr. Mento does not suggest that the agency’s explanations for its demand
are pretext. The agency is not obligated to accept Ms. Gilliard’s view of which tapes constitute
relevant evidence. Furthermore, the agency supplied other reasons for seeking the tapes—
namely, that the recordings appear to reveal that Ms. Gilliard defied an order directing her not to
surreptitiously tape and that they might contain confidential information concerning other FDIC
employees. These issues have not been resolved by Ms. Gilliard’s submission of a handful of
tapes that she believes relate to her allegations against Mr. Mento.
Finally, the agency explains that it would have a legitimate, nonretalitory reason for
proposing disciplinary action for Ms. Gilliard’s refusal to submit the audio recordings. See
Def.’s Opp’n at 33–34. Specifically, Ms. Gilliard’s refusal to turn over the tapes would defy two
reasonable agency orders, constituting insubordination. See Def.’s Opp’n at 33–35. Ms. Gilliard
appears to argue that this reason for proposing disciplinary action would be pretextual because
she has already handed over all audio recordings that support her claim of harassment against
Mr. Mento. See Pl.’s Reply at 14–15. Ms. Gilliard has not, however, undercut the agency’s
reasons for suggesting that it might propose disciplinary action. It ordered her to turn over all
recordings that she made of her colleagues after October 2014, not just recordings that she
deemed relevant to the allegations that she asserted in her September 2017 workers’
compensation claim. See Order to Provide Audio Files, Ex. W; Second Order to Produce
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Recordings, Ex. X. That Ms. Gilliard turned over a portion of her audio recordings does not
mean that the agency could not wish to initiate disciplinary action for nonretalitory reasons based
on her failure to fully comply with its orders.
In sum, Ms. Gilliard has not demonstrated that she is likely to succeed on the merits of
her claim that the agency retaliated against her by requesting that she cease surreptitiously
recording her colleagues and demanding that she turn over audio recordings that she made in
defiance of that order.
2. Plaintiff Has Not Shown That She Would Suffer Irreparable Harm
The Court next considers whether Ms. Gilliard has met her burden of showing irreparable
harm. Ms. Gilliard argues that, in the absence of a temporary restraining order or preliminary
injunction, she would suffer irreparable harm because (1) she might face disciplinary action,
including firing; (2) her refusal to provide the recordings might be labeled insubordination, and
such a label might render her more susceptible to firing in the future; and (3) by having access to
the audio recordings, the FDIC “would gain from being allowed to circumvent the discovery
rules in this case.” See Mot. for PI at 11–12; Pl.’s Reply at 21. The Court finds that Ms. Gilliard
has not met her burden.
Courts in this jurisdiction have recognized that “[t]he concept of irreparable harm does
not readily lend itself to definition.” Judicial Watch, Inc. v. Dep’t of Homeland Sec., 514 F.
Supp. 2d 7, 10 (D.D.C. 2007). Nonetheless, the D.C. Circuit has laid out “several well known
and indisputable principles” that should underlie a court’s analysis. Wis. Gas Co. v. FERC, 758
F.2d 669, 674 (D.C. Cir. 1985). First, the party seeking preliminary injunctive relief must
demonstrate that the claimed injury is “both certain and great” and “actual and not theoretical.”
Id. Second, the movant “must show that ‘[t]he injury complained of [is] of such imminence that
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there is a ‘clear and present’ need for equitable relief to prevent irreparable harm.’” Id.
(alterations in original) (quoting Ashland Oil, Inc. v. FTC, 409 F. Supp. 297, 307 (D.D.C. 1976)).
And, finally, the injury must be “beyond remediation.” Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006). Some courts in this jurisdiction have found that “a
more stringent showing of irreparable injury is required when a plaintiff, even in a Title VII case,
seeks a preliminary injunction against the federal government in the personnel area.” Bonds v.
Heyman, 950 F. Supp. 1202, 1212 (D.D.C. 1997), abrogated on other grounds.
First, at this time, the FDIC has not actually proposed any disciplinary action against Ms.
Gilliard. See Def.’s Opp’n at 31–32. Thus, it is difficult to say that Ms. Gilliard’s as-yet-
defined, potential injury is “both certain and great” and “actual and not theoretical.” Second,
Ms. Gilliard has not demonstrated that any proposed disciplinary action would constitute
irreparable harm. As the FDIC argues, loss of employment is not legally irreparable. See Def.’s
Opp’n at 36–38. The Supreme Court has stated that “[t]he possibility that adequate
compensatory or other corrective relief will be available at a later date, in the ordinary course of
litigation weighs heavily against a claim of irreparable harm.” Sampson v. Murray, 415 U.S. 61,
90 (1974). Consistent with that principle, courts in this jurisdiction have held that “loss of
income does not constitute irreparable injury because the financial loss can be remedied with
money damages.” Int’l Ass’n of Machinists & Aerospace Workers v. Nat’l Mediation Bd., 374 F.
Supp. 2d 135, 142 (D.D.C 2005); see also Farris v. Rice, 453 F. Supp. 2d 76, 79 (D.D.C 2006)
(“[G]iven the court’s equitable powers to remedy for loss in employment through, for example,
back pay and time in service credit, cases are legion holding that loss of employment does not
constitute irreparable injury.”). To be sure, in “extraordinary cases” an employee may show that
loss of employment constitutes irreparable harm. See, e.g., Risteen v. Youth for Understanding,
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Inc., 245 F. Supp. 2d 1, 16 (D.D.C 2002) (finding that plaintiff had shown irreparable injury by
demonstrating that he would not have access to “critical medical attention because he has lost his
health insurance”); Bonds, 950 F. Supp. at 1210–15 (discerning irreparable harm with regard to a
plaintiff who was 58 years old, had worked for the employer for nearly 40 years, had no college
education, and plaintiff had shown “how much of her life [was] tied into her career”). But Ms.
Gilliard has failed to explain why the present circumstances might constitute such an
extraordinary matter. Furthermore, she has failed to explain why any other disciplinary action,
short of termination, that she might face for her refusal to submit the audio recordings might
constitute irreparable harm.
Third, Ms. Gilliard asserts that by having access to the audio recordings, the FDIC
“would gain from being allowed to circumvent the discovery rules in this case.” Pl.’s Reply at
21. But Ms. Gilliard neglects to explain how the FDIC would gain or why this gain might
prejudice her such that it might constitute harm—let alone harm that is “certain and great.”
Thus, the Court concludes that Ms. Gilliard has not demonstrated that any proposed disciplinary
action that might result from her refusal to hand over the tape constitutes irreparable harm.
3. Plaintiff Has Not Shown that the Balance of the Equities and Public Interest
Considerations Favor Injunctive Relief
Next, Ms. Gilliard contends that balancing of the equities and public interest
considerations favor granting her motion. See Mot. for PI at 12–15. She argues that the FDIC
would suffer minimal harm should the Court order that Ms. Gilliard need not comply with the
agency’s command to submit the audio recordings. See Mot. for PI at 12–14. Ms. Gilliard
suggests that the FDIC could seek production of the audio recordings in the course of discovery
in this case, and that the agency should not be permitted to subvert normal discovery procedures
to gain early access to discoverable materials and to gain access to materials that may not be
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discoverable. See Mot. for PI at 12–14. She contends that, by contrast, in the absence of
injunctive relief, the FDIC could “try to fabricate a defense or justification to counter what is
said on the tapes.” Mot. for PI at 13. Ms. Gilliard also claims that “after hearing what is on the
tapes the Defendant is likely to retaliate against [her].” Mot. for PI at 13. Finally, Ms. Gilliard
asserts that the public interest would be served by granting her requested relief because
permitting the agency to demand the tapes might “send a chilling effect on other individuals who
contemplate legally gathering proof of violation of their rights by their employers.” Mot. for PI
at 14–15. The FDIC disagrees, arguing that it would suffer substantial injury because its
authority over personnel affairs would be undermined by a court order permitting Ms. Gilliard to
defy its demand that she supply evidence related to an internal investigation. Def.’s Opp’n at
38–41. The Court finds that Ms. Gilliard has not met her burden.
In determining whether to grant a preliminary injunction “courts must balance the
competing claims of injury and must consider the effect on each party of the granting or
withholding of the requested relief.” Winter, 555 U.S. at 24 (internal quotation marks omitted)
(quoting Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987)). “In exercising their
sound discretion, courts . . . should [also] pay particular regard for the public consequences in
employing the extraordinary remedy of injunction.” Winter, 555 U.S. at 24 (quoting Weinberger
v. Romero-Barcelo, 456 U.S. 305, 312 (1982)). These considerations merge into one factor
when the government is the non-movant. See Nken v. Holder, 556 U.S. 418, 435 (2009).
First, Ms. Gilliard has produced no evidence supporting her claim that the FDIC might
“try to fabricate a defense or justification” or that the agency “is likely to retaliate” absent an
injunction. Second, the Court agrees with the FDIC that the Court’s intervention in this matter,
which appears to relate primarily to internal agency affairs, would undermine the agency’s
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ability to manage its own personnel and affairs. Third, the Court finds unpersuasive Ms.
Gilliard’s bald contention that declining to grant her relief might have a chilling effect on
employees’ efforts to seek evidence supporting their Title VII claims. Finally, the Court sees no
reason for delaying the FDIC’s access to the tapes on the basis that the Court’s discovery
schedule should govern when these tapes are released.
It should come as no surprise that the subjects of a Title VII suit may interact with one
another regarding issues that relate only tangentially to the litigation. The timing of the FDIC’s
access to the disputed tapes appears to this Court to be such an issue. The Court must not
position itself as the arbiter of every barely-litigation-related, employee-employer dispute. The
Court concludes that Ms. Gilliard has not shown that the balancing of the equities and public
interest considerations favor her requested relief.
IV. CONCLUSION
The FDIC ordered Ms. Gilliard not to surreptitiously tape record other FDIC employees.
It appears that she has defied that order. As a result, the FDIC appears to be considering whether
to discipline Ms. Gilliard for her disobedience. To the extent that Ms. Gilliard wishes to
challenge any proposed discipline that results from her defiance, she must do so using the normal
channels that she has available to her. Accordingly, for the foregoing reasons, Plaintiff’s Motion
for Protective Order and Plaintiff’s Motion for Temporary Restraining Order and Preliminary
Injunction are DENIED. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: June 26, 2018 RUDOLPH CONTRERAS
United States District Judge
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