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Casey v. Department of Health & Human Services

United States Court of Appeals, First Circuit

December 7, 2015

DEANNE CASEY, Plaintiff, Appellant,
DEPARTMENT OF HEALTH AND HUMAN SERVICES; SYLVIA M. BURWELL, in her capacity as Secretary of the Department of Health and Human Services; DEBORAH LEE JAMES, in her official capacity as Secretary of the United States Air Force; DEPARTMENT OF DEFENSE; WILLIAM CARPENTER; FRANK GLENN; LEON E. PANETTA, in his official capacity as Secretary of Defense, Defendants, Appellees, STG INTERNATIONAL; JESSE BURK, individually and in her official capacity as Health Promotion Operation Manager at the Federal Occupational Health Division of the Department of Health and Human Services, Defendants

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[Copyrighted Material Omitted]

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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. William G. Young, U.S. District Judge. Hon. M. Page Kelley, U.S. Magistrate Judge.

Joseph L. Sulman, with whom David I. Brody and Law Office of Joseph L. Sulman, were on brief, for appellant.

Anita Johnson, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellees.

Before Howard, Chief Judge, Selya and Stahl, Circuit Judges.



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STAHL, Circuit Judge. The Plaintiff-Appellant, Deanne Casey, was formerly employed as a nurse coordinator with the Civilian Health Promotion Services Program (" CHPS Program" ) at Hanscom Air Force Base in Bedford, Massachusetts (" Hanscom" ). After Casey's employment was terminated, she brought suit against the government contractor that employed her, her supervisor, as well as several government agencies and officials that she believed were involved in her termination. In relevant part, Casey alleged a violation of her First Amendment rights pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).[1] She also alleged that several of the defendants had engaged in unlawful gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

In the proceedings below, the district judge dismissed Casey's Bivens claim. Then, later, a magistrate judge granted summary judgment to the remaining defendant on the Title VII claim. Casey now appeals. We AFFIRM both dispositions, though we do so as to the Bivens claim for reasons other than those relied upon by the district judge.

I. Facts and Background

A. Casey's Employment at Hanscom

The CHPS Program was created pursuant to an interagency agreement between the Federal Occupational Health Division (" FOH Division" ) of the United States Department of Health and Human Services (" DHHS" ) and the United States Air Force Materiel Command (" AFMC" ). Its purpose is to provide occupational health services to civilian employees of the AFMC. However, neither the FOH Division nor the AFMC directly administer or run the CHPS Program. Rather, the FOH Division engages private contractors to perform these functions.

In 2007, Casey was hired as a Nurse Coordinator by STG International Inc. (" STG" ), the government contractor then employed to administer the CHPS Program at Hanscom. As a Nurse Coordinator, Casey was responsible for teaching health and wellness classes, conducting blood pressure and cardiac risk profile

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screenings, and performing other health-related services for AFMC personnel employed at Hanscom.

In 2010, the contractual arrangements were amended. A company known as Millennium Health and Fitness, Inc. (" Millennium" ) became the prime contractor to the FOH Division, and STG entered into a subcontract with Millennium. Contemporaneously, Casey executed a new employment agreement with STG, now the subcontractor to Millennium. This agreement provided that Casey would continue her employment with STG, performing similar job functions as she had previously when STG was the primary contractor to the FOH Division.

At all relevant times, STG set and paid Casey's salary and provided her with employee benefits and W-2 forms. Casey's immediate STG supervisor was Jesse Burk, who was the Health Promotion Operation Manager overseeing the CHPS Program at a total of eight Air Force bases across the country. Although Burk initially was employed by STG when it was the prime contractor, in 2010, coincidentally with the contract change, she became an employee of Millennium. Burk reported to Susan Steinman, who was an employee of the FOH Division of the DHHS.

At all times, based on criteria prescribed by the FOH Division, Burk was responsible for developing the health and wellness curriculum that Casey taught at Hanscom. Burk also reviewed Casey's calendar on a monthly basis to ensure that Casey was teaching the requisite number of courses and was otherwise using her time effectively. While Burk was employed by STG, among her other duties, she was responsible for completing Casey's performance evaluations. When Burk transferred from STG to Millennium, direct responsibility for Casey's performance evaluations fell to a different STG employee, though Burk continued to provide Casey with feedback and recommendations.

The record suggests that, sometime in 2011, Casey's work performance began to falter. For example, in August 2011, Burk was forced to counsel Casey about her poor communication skills and her unexplained absences from her office during the workday.

The situation escalated in November 2011, when Burk received reports from William Carpenter, the manager of the Health and Wellness Center at Hanscom (where Casey's office was located), that Casey was not performing her job duties and was being uncommunicative. On Thursday, November 10, Casey discovered a memorandum critical of her performance sitting on a workplace copy machine and confronted Carpenter in his office about the memorandum's contents. The parties offer diverging accounts of exactly whet transpired, although it is clear that, immediately following the confrontation, Casey reported to military police that Carpenter had assaulted her.

Burk did not learn of the November 10 incident until the following Monday, November 14, when she received an e-mail from Judith Holl, an AFMC employee in charge of overseeing the CHPS Program. Holl's e-mail reported a " major incident at Hanscom," and in subsequent communications with Burk, Holl urged that Casey be removed from the CHPS Program. In turn, Burk contacted Steinman. Over the course of the day on November 14, Holl, Burk, and Steinman ...

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