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Thomas v. Vilsack

June 22, 2010

MARY THOMAS, PLAINTIFFS,
v.
TOM VILSACK, SECRETARY, DEPARTMENT OF AGRICULTURE, DEFENDANTS.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION*fn1

Pending before this Court is Defendant's Motion for Summary Judgment ("Mot. for Summ. J.")*fn2 [42], Plaintiff's Opposition and Memorandum of Points and Authorities to Defendant's Motion ("Opp'n to Mot. for Summ. J.") [47], and Defendant's Reply to the Opposition ("Reply to Mot. for Summ. J.") [53]. The Court held a hearing on Defendant's Motion on April 9, 2010. For the reasons set forth herein, Defendant's Motion is granted in part and denied in part. An appropriate Order accompanies this Memorandum Opinion.

I. BACKGROUND

On January 8, 2008, the Plaintiff, Mary Thomas, sued her employer, the Department of Agriculture ("USDA" or "the agency") for violating Title VII on the basis of race, sex, and retaliation. (See Compl. [1].) Plaintiff alleges that Defendant discriminated against her when it (1) paid her at a lower rate than white males holding the same position; (2) removed her as the Chief Information Officer ("CIO"); (3) reassigned her to a lateral position with almost no responsibilities; and (4) rejected her application for promotion to the CIO position when it was upgraded to the Senior Executive Service ("SES") level.In its motions for summary judgment and partial summary judgment, Defendant asserts that Plaintiff failed to exhaust her administrative remedy as to her second claim, and that it is entitled to summary judgment as a matter of law on all other claims.

A. Failure to Promote to SES

Plaintiff, an African-American female, has been an employee with the Department of Agriculture since 1978. From 1999 to 2005, she served as the CIO and Director of the Information Technology Division ("ITD") of the National Resources Conservation Service ("NRCS") at the GS-15 level. (2005 ROI [42-2] at 74.) In that position, she supervised over 250 employees located in two different offices. (2005 ROI at 74.) At the time of the alleged adverse actions in this case, Bruce Knight was the Chief of NRCS. (Knight Dep. 11/24/08 [53-4] at 7.) In 2004, Dana York was appointed as Mr. Knight's Associate Chief. Both individuals are white. (2005 ROI at 74.) Plaintiff's direct supervisor, Dwight Holman, served as Deputy Chief for Management and reported directly to the Associate Chief, Ms. York. (2005 ROI at 74.) Mr. Holman is African American. (2005 ROI at 74.)

Since 2000, Plaintiff had regularly and unsuccessfully sought an SES position. (Pl. Ex. 3 [47-3].) After Plaintiff was appointed as Acting CIO and Director of ITD in 1999, it came to her attention that white males serving as CIO's within the USDA were paid at the SES level. (See Pl. Ex. 3 at 1; Thomas Dep. 3/16/09 at 101.) According to Plaintiff, she inquired several times to Mr. Holman about having her position upgraded to the SES level. (2005 ROI at 78.) While Mr. Holman indicated he would pursue that on her behalf, nothing ever came of it. (2005 ROI at 78-79.)

In July 2004, Plaintiff revisited the issue and asked Mr. Holman to reclassify her position to an SES like her white male counterparts. (Pl. Ex. 3 at 1.) Mr. Holman agreed and set about to complete the reclassification process with Plaintiff's assistance and input. (2005 ROI at 91.) In August 2004, Mr. Holman certified that the duties and responsibilities of the CIO and Director of ITD should be separated and that the CIO duties "merited the SES designation." (E-Exs. at E-777.) This certification was then forwarded to Mr. Knight, who was responsible for finalizing the reclassification and making the request for an SES slot. (2005 ROI at 91.) However, Mr. Knight did not pursue the matter in 2004, and the CIO position remained officially classified as a GS-15 until August 2005. (2005 ROI at 91.) On August 5, 2004, Mr. Holman advised Plaintiff that his superiors would not move forward with reclassifying the position. (Pl. Ex. 3 at 2.) At that time, neither Mr. Knight nor Ms. York indicated that there were any issues with Plaintiff's performance to Mr. Holman or to Plaintiff. (2005 ROI at 91.)

B. First EEO Complaint

On August 2, 2004, Plaintiff contacted one of the agency's EEO counselors, alleging that she was discriminated against "based on her race, age, sex, and reprisal," when she was repeatedly not promoted to the SES level like others who were similarly situated. (See Pl. Ex. 48 at 3, 5.) Because the agency did not take any action after she contacted the EEO counselor, Plaintiff filed a formal EEO complaint with the agency on November 5, 2004. (Pl. Ex. 48 at 3.) On May 19, 2005, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") of the Equal Employment Opportunity Commission ("EEOC") because the agency had taken no steps to investigate her complaint. (Pl. Ex. 3 at 2.) That same day, an ALJ at the EEOC ordered the USDA to submit the complaint file and its report of investigation. (Id.) On June 22, 2005, the agency responded to the ALJ's order by requesting a 60-day extension to complete the investigation. (Pl. Ex. 3 at 2.) However, the agency never completed an investigation.

C. NRCS Performance Issues

Mr. Holman testified that during the year that Plaintiff was pursuing her first EEO complaint, she continued to perform at a high level and that he did not receive any complaints about her performance from his superiors. (See 2005 ROI at 91; see also Holman Dep. 3/4/09 at 32-33, 94-95.) However, Ms. York testified that she started receiving complaints about Plaintiff as early as 2004 and states that she passed these complaints on to Mr. Holman. (Pl. Ex. 27.) Although Mr. Holman states that he did not receive any complaints about Plaintiff, Ms. York approached Mr. Holman in March 2005 to complain about a wide array of problems she perceived existed in his management area, including his management of the ITD. (Holman Dep. 3/4/09 at 33-34; Pl. Ex. 8.) Mr. Holman responded in great detail to each of Ms. York complaints. (Pl. Ex. 9.) Mr. Holman's bottom-line response was that despite his repeated requests to his superiors, he was not given the funding and support that would enable him to resolve the issues Ms. York raised. (Pl. Ex. 35 at 33-35, 94-95; Pl. Ex. 9.)

In late July 2005, Mr. Holman was called into a meeting by Mr. Knight and Ms. York. (2005 ROI at 91.) At this meeting, he was ordered to remove the duties of the CIO from Plaintiff. (Id.) Mr. Holman was told that David Combs, the USDA's CIO, had reported that Plaintiff had missed several agency-wide CIO meetings and that NRCS was being graded poorly on IT security issues based on the President's Management Agenda ("PMA"). (2005 ROI at 24, 91; Pl. Ex. 33 at 33, 36.) Mr. Holman stated that he disagreed with the decision and that many of the complaints about Plaintiff were not within her control. (2005 ROI at 91; Holman Dep. 3/4/09 at 33-34.) Later, security issues with a program called ProTracts were cited as one of the other reasons for removing Plaintiff's CIO duties. (See, e.g., Pl. Ex. 24; Pl. Ex. 33 at 32-34; Pl. Ex. 32 at 16-18, 22-23.) However, ProTracts was run by Jack Carlson, Director of the Information Technology Center at Ft. Collins, Colorado -- an office under the supervision of the ITD and subordinate to Plaintiff. (Pl. Ex. 54; Pl. Ex. 35 at 36, 52-56; Thomas Depo. 3/16/09 at 15-16.) Mr. Carlson never received any repercussions or discipline for the problems with ProTracts. (Pl. Ex. 35 at 55-56, 133.)

Mr. Knight and Ms. York also complained of the PMA scorecard ratings that IT received during Plaintiff's tenure and of IT problems raised in the 2002 and 2004 Office of Inspector General (OIG) audits. (Pl. Ex. 33 at 33-37.) Evidence indicates, however, that Plaintiff was excluded from important IT matters that should have been reported to her as the CIO and Director of ITD. (See Thomas Dep. 3/16/09 at 25-26, 33-34; Pl. Exs. 22 & 23; Pl. Ex. 32 at 34-35.) Additionally, several PMA scorecard ratings from that time period show ITD scoring out as green or yellow, not red as indicated by Mr. Knight and Ms. York. (See Pl. Exs. 16 & 17.)

According to Mr. Holman, these complaints from Mr. Knight and Ms. York were the first he received about Plaintiff's performance. (Holman Dep. 3/4/09 at 32-33.) Mr. Holman testified that he tried to dissuade Mr. Knight and Ms. York from removing Plaintiff's CIO duties and to allow her the opportunity to improve, but to no avail. (2005 ROI at 91.) Conversely, Mr. Knight testified that he had received "numerous complaints" about Plaintiff from Mr. Combs regarding "missed deadlines, lack of performance, [and] lack of attendance at his management meetings." (Knight Dep. 11/24/08 at 23.) In response to interrogatories, Ms. York also said that she had received several complaints about Plaintiff's performance. (Pl. Ex. 27.) According to Mr. Combs, however, he had never made any complaints about Plaintiff's performance prior to a lunch meeting he had with Mr. Knight shortly before August 2005. (Pl. Ex. 31 at 52; Pl. Ex. 25.) Mr. Combs testified that at the meeting Mr. Knight asked him about his thoughts on Plaintiff. (Pl. Ex. 25; Pl. Ex. 31 at 53-54.) According to Mr. Combs, he simply relayed to Mr. Knight his concerns about performance in some of NRCS's IT areas and the fact that he had little contact with Plaintiff because she was either not present or did not participate actively at the agency-wide CIO meetings. (Pl. Ex. 25; Pl. Ex. 31 at 53-54.) Mr. Combs testified that he only discussed his thoughts on Plaintiff and the ITD's performance because Mr. Knight asked him directly about it. (Pl. Ex. 31 at 53-54.) Mr. Combs testified that he never had any other discussion with Mr. Knight about Plaintiff's performance nor did he ever initiate one. (Pl. Ex. 25; Pl. Ex. 31 at 52.)

D. Plaintiff's Removal as CIO

Pursuant to Mr. Knight's and Ms. York's orders, on August 2, 2005, Mr. Holman notified Plaintiff that he would be removing her CIO duties. (Pl. Ex. 3 at 2.) He also gave her a memorandum dated August 4, 2005, that said her CIO duties would be removed effective August 6, 2005. (2005 ROI at 23.) Mr. Holman communicated to Plaintiff that she was being removed because of meetings she had missed and other alleged deficiencies in her performance. (Pl. Ex. 3 at 2.) This was the first time Plaintiff had received any complaints about her performance. (Pl. Ex. 53.) Although she was to retain the Director of ITD position, Plaintiff testified that she feared further reprisal and thus requested a transfer. (Pl. Ex. 52;2005 ROI at 24A.) In the interim, Mr. Holman directed her to work from home until her new assignment came through. (Pl. Ex. 3 at 2.) On October 2, 2005, Plaintiff was officially reassigned to a Program Analyst position under the supervision of David Gagner. (2005 ROI at 17.) Plaintiff contacted the agency's EEO office on October 15, 2005, to lodge a complaint regarding the removal of her CIO duties and her reassignment to the Program Analyst position. (2005 ROI at 2; see generally 2006 ROI..)

E. CIO Reclassification as SES

Simultaneously with removing Plaintiff's CIO duties in August 2005, the agency reclassified the CIO position as an SES -- twelve months after Mr. Holman had made the SES certification request to Mr. Knight. (Pl. Ex. 35 at 30-32, 38-41.) While attempting to process the SES certification, Ms. York had the date on Mr. Holman's original request changed from 2004 to the then current date in 2005. (Pl. Ex. 4; Pl. Ex. 34 at 8-9.) After the SES certification was approved by USDA officials and the SES slot was given to NRCS, a vacancy announcement for the CIO position was issued. (Pl. Ex. 35 at 109-11.) Mr. Carlson had been appointed Acting CIO following Plaintiff's removal. (Id. at 41.) Both he and Plaintiff applied for the position. (Id. at 41-42.) Mr. Holman recommended Plaintiff to Mr. Knight, but Mr. Knight chose Mr. Carlson, who is a white male. (Id. at 41-42.) No interviews were held. (Pl. Ex. 38 at 24.) Mr. Knight indicated to Mr. Holman that he rejected Plaintiff for the same reasons he had her CIO duties removed in the first place. (Pl. Ex. 35 at 42-44.) Plaintiff filed a third EEO complaint on April 4, 2006, regarding her non-selection to the CIO position. (2006 ROI at 2.)

F. Program Analyst Duties

From October 2005 to October 2006, Plaintiff served in the Program Analyst position. (Pl. Ex. 3 at 3.) The position carried duties and responsibilities drastically reduced from those Plaintiff had exercised as CIO and Director of ITD. (Id.) The position had no supervisory responsibilities and involved very little substantive work. (2005 ROI at 16.) In the year that Plaintiff held the position, she received only two assignments, which required only eight days of work. (Pl. Ex. 3 at ...


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