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Hill v. Kempthorne

September 9, 2008

MILTON HILL, PLAINTIFF,
v.
DIRK KEMPTHORNE, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Milton Hill, a former employee at the United States Department of the Interior ("the Department"), brings this action against defendant Dirk Kempthorne in his official capacity as the Secretary of the Department, alleging retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Currently before the Court is the Department's motion for summary judgment. Upon careful consideration of the motion and the parties' memoranda, the applicable law, and the entire record, the Court will grant in part and deny in part the Department's motion.

BACKGROUND

Hill was employed at the Department of the Interior from 1990 until 2002. See Am. Compl. ¶ 5. During his time at the Department, Hill took advantage of several detail and fellowship opportunities. From October 1994 to February 1996, Hill worked on Capitol Hill in an American Political Science fellowship detail. See Milton E. Hill Dep., Aug. 6, 2007 ("2007 Hill Dep."), at 22-25. And from July 1998 to September 1999, Hill participated in a management training program at the Industrial College of Armed Forces. Id. at 37-38.

In February 1999, a vacancy announcement was posted for a GS-15 human resources position. See Def.'s Doc. Response at 1-4. The announcement described the position as a "Human Resources Specialist, Supervisory," and the closing date was listed as March 11, 1999. Id. Both Hill and Concetta Stewart applied for the position, but neither was chosen at that time. Instead, the position was readvertised in April 1999 in a new vacancy announcement as a "Supervisory Personnel Management Specialist." Id. at 5. Both candidates applied again, and both names were referred to the selecting official as being among the best qualified applicants; Concetta Stewart was selected. Id. at 42-43.

While Hill was still participating in the training program at the Industrial College of Armed Forces, the Department's 1998 performance evaluations became due. On January 30, 1999, Hill sent a letter to his Department supervisor, Peter Niebauer, informing him that he had not received a 1998 performance evaluation or an accompanying award. See Jan. 30, 1999 Letter from M. Hill to P. Niebauer. Hill was subsequently evaluated and received an "achieved" rating in all critical areas, and on June 30, 1999, Hill signed and initialed the evaluation. See 1998 Appraisal at 2-4. The day before he signed the performance appraisal, Hill met with Robert Doyle, the Acting Assistant Director of Business and Fiscal Resources to discuss the results, and he met with Doyle again on August 5, 1999. See Record of Investigation at 54-56. At these meetings, Doyle told Hill that he had received input from Hill's peers to help him prepare the performance evaluation. Hill was upset at this information and believed Doyle's actions were inappropriate. He thereafter wrote a letter to Doyle on September 22, 1999, asking Doyle why he had sought the input of his colleagues, id., and Hill later contacted an Equal Employment Opportunity ("EEO") counselor on October 12, 1999, to complain about his performance appraisal. See Record of Investigation at 33.

In September 1999, Hill returned to the Department of the Interior and was assigned to the Office of Small Business, which was supervised by Robert Faithful. See 2007 Hill Dep. at 38. On September 13, 1999, Hill sent a memorandum to Niebauer requesting travel authorization for his "upcoming participation and presentations in several conferences," but Hill did not receive any travel funds in time to attend the Black Chamber of Commerce meeting two days later on September 15, 1999. See Sept. 13, 1999 Letter from M. Hill to P. Niebauer; Milton E. Hill Dep., Mar. 19, 2002 ("2002 Hill Dep."), at 168-69. He did, however, receive travel funds as requested for his attendance at the Hispanic Chamber of Commerce meeting that was held in the latter part of September or October 1999. See 2002 Hill Dep. at 170.

At the end of September 1999, Niebauer retired from the Group Manager position of his division. Until the position was formally filled, Joseph Federline and Robert Donelson alternated as Acting Group Manager, but Hill was not given this same opportunity. See Decl. of Robert Doyle ("Doyle Decl.") ¶ u. Two months later, in November 1999, Hill met with the Director of the Bureau of Land Management ("BLM"), Tom Fry, and BLM's Human Resources Director, Warren Johnson, to discuss his concerns about not being selected for various jobs. See 2007 Hill Dep. at 97. During this meeting Hill expressed his interest in the Assistant Director position of the Eastern States Office. Hill contends that Fry thereafter offered to submit Hill's application for this position if it ever became vacant. Id. at 100-01. However, Hill admits that he had no confidence in Fry's offer of assistance and that he did not actually believe that Fry was going to submit his application as indicated. Id. at 101-03.

Fry subsequently learned that Hill had sent a letter to Senator Paul Sarbanes on October 13, 1999, naming Fry "as a top-level management official" that had assaulted his career and his future at the Department. See Oct. 13, 1999 Letter from M. Hill to Sen. P. Sarbanes. Fry was upset that Hill failed to mention any such allegations or problems during their November meeting. In response, therefore, he wrote a letter to Hill explaining that he had decided to recuse himself from any future matters affecting Hill's career. See Nov. 23, 1999 Letter from T. Fry to M. Hill. Fry therefore never submitted Hill's application for the Eastern States Office position, but Hill submitted his application himself in November 1999. See 2007 Hill Dep. at 109-10; 2002 Hill Dep. at 324, 330-31.

Around this same time, although he had been assigned to the Office of Small Business, Hill began working in the Office of Environmental Policy for Dr. Willie Taylor. After consulting with Johnson, Dr. Taylor submitted a formal proposal to Doyle for Hill to perform a six-month detail at the GS-14 level in the Office of Environmental Policy. See 2002 Hill Dep. at 194. It is unclear, however, whether this detail was ever officially approved by management. See Nov. 3, 1999 Letter from M. Hill to T. Fry. In December 1999, Hill was asked to resume work for the Bureau of Land Management, and in February 2000, he was told to return permanently to his duties at BLM. See 2002 Hill Dep. at 200-01.

During this time, Hill often complained that he did not have an updated position description. When Federline became Hill's supervisor in mid-2000, Doyle asked Federline "to ensure that everyone he supervised had a current position description and performance rating plan, including [Hill]." Doyle Decl. ¶ w. Therefore, on July 20, 2000, Federline signed a new position description for Hill as a Senior Business Management Specialist at the GS-14 level. See July 2000 Position Description at 1. Hill apparently objected to his new title, however, and argued that the switch from Senior Business Manager to Senior Business Management Specialist made his job more clerical and less of a managerial position.

On October 6, 2006, Hill filed an amended complaint with this Court alleging retaliation in violation of Title VII. Hill alleges that he engaged in protected activity on June 29, 1999, August 5, 1999, and September 22, 1999, when he met with and then wrote a letter to Doyle complaining about his 1998 performance evaluation; when he met with Assistant Secretary John Berry in October 1999; when he wrote letters to Senator Sarbanes, Senator Warner, and Representative Wynn in October 1999 complaining about his treatment at the Department; and when he met with Tom Fry in November 1999. See Pl.'s Supp. Interrog. Resp. at 11-12. In his amended complaint, Hill alleges eight counts of retaliation based upon his 1998 performance evaluation (Count 1), his failure to receive travel funds to attend the September 15, 1999 convention (Count 2), the early termination of his detail to the Office of Environmental Policy (Count 3), his rewritten position description as a Senior Business Management Specialist (Count 4), his non-selection as acting supervisor (Count 5), the refusal of a training opportunity (Count 6),*fn1 the rewritten human resources position description (Count 7), and Fry's failure to submit his application to the Eastern States Office in November 1999 (Count 8).

The Department has now moved for summary judgment. The Department contends that Hill did not timely contact an EEO counselor for some of his claims, that he cannot establish a causal connection between all of his claims and his protected activity, and that, in any event, he has failed to rebut the ...


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