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Reichert v. Perdue

United States District Court, D. Vermont

July 24, 2018

MELISSA REICHERT Plaintiff,
v.
SONNY PERDUE, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE Defendant.

          MEMORANDUM AND ORDER

          William K. Sessions III District Court Judge

         Plaintiff Melissa Reichert brings this action against Sonny Perdue, Secretary, United States Department of Agriculture (“Defendant”) alleging that her employer, the United States Forest Service (“Forest Service”), discriminated against her based on her age and sex in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment of Act of 1976 (“ADEA”). Specifically, Plaintiff alleges that due to her age and sex, Forest Service officials (1) did not select her for a promotion to the Public Services Staff Officer position on the Green Mountain and Finger Lakes National Forests in 2011; (2) reassigned her to the Forest Recreation Program Manager position upon eliminating her Forest Planner position; and (3) retaliated against her for complaining about such alleged discrimination. Defendant has moved for summary judgment, arguing that there is no genuine dispute as to any material fact and that each of Plaintiff's claims fails as a matter of law. For the reasons stated below, Defendant's motion for summary judgment (ECF 40) is granted.

         UNDISPUTED FACTS

         Plaintiff has been an employee of the Forest Service, an agency organized within the United States Department of Agriculture (“USDA”), since 2001. Aside from a 120-day detail assignment to the Tahoe National Forest in 2016, Plaintiff has been stationed on the Green Mountain and Finger Lakes National Forests (“GMFLNF” or the “Forest”) since 2001. The GMFLNF technically consists of two separate national forests: the Green Mountain National Forest, which is located in southwestern and central Vermont; and the Finger Lakes National Forest, which is located in western New York and organized as an administrative unit of the Green Mountain National Forest. The GMFLNF is organized across four ranger districts, each of which is administered by a District Ranger who oversees district-level work and reports directly to the Forest Supervisor. The northern half of the Green Mountain National Forest is administered by a District Ranger for the Rochester and Middlebury Ranger Districts, the southern half of the Green Mountain National Forest is administered by a District Ranger for the Manchester Ranger District, and the Finger Lakes National Forest is administered by a District Ranger for the Hector Ranger District. The GMFLNF is also organized across five areas of technical programming or “Staff Areas”: (1) Administrative Services Staff Area; (2) Ecological Services Staff Area; (3) Public Affairs Staff Area; (4) Public Services Staff Area; and (5) Technical Services Staff Area.

         Plaintiff held the position of Forest Planner on the GMFLNF from approximately February 2001 to February 2014. The Forest Planner position was eliminated from the Forest organization as part of a Forest-wide workforce restructuring effort that was formally implemented beginning in or about 2013 (the “Reorganization”). At the time it was eliminated, the Forest Planner position was organized as part of the GMFLNF's National Environmental Policy Act (“NEPA”)/Planning staff, which was organized within the Public Services Staff Area.

         In 2009, Plaintiff applied for the position of Recreation Program Manager on the GMFLNF, but she was not selected to fill the position. In 2010, Plaintiff sought and completed a 120-day detail assignment as the Acting Recreation Program Manager on the GMFLNF.

         In April 2011, Plaintiff applied for a promotion to the position of Public Services Staff Officer on the GMFLNF. A selection panel consisting of three Forest Service employees--one male chair and two females--was empaneled to assist with the selection of the most-qualified candidate for the Public Services Staff Officer position. The selection panel reviewed the applications of fifteen candidates, from which the selection panel identified the six most-qualified candidates. The selection panel then narrowed it down to the four most-qualified candidates and conducted interviews with each one using the same standardized interview questions. Plaintiff was interviewed by the selection panel.

         The selection panel created a selection package that included a summary of the strengths and weaknesses of the four candidates and the panel submitted that package to GMFLNF Forest Supervisor Colleen Madrid for transmittal to the selecting official for the hiring action, Deputy Regional Forester Retha Lee Nightingale. Madrid reviewed the selection package for accuracy and then transmitted it to Nightingale. Madrid included a cover letter in which she summarized the selection process and also stated:

It is my recommendation that Donna Grosz Williams be selected to fill this position. I feel strongly that her background, experience and interpersonal skills make her the best candidate for this position. If we are unable to select Donna, I would recommend that we re-advertise the position as the remaining candidates lack the skills to successfully function in this position.

ECF 40-56, p. 2-3.

         Nightingale reviewed the selection package in consultation with Acting Regional Forester Logan Lee and selected Grosz for the Public Services Staff Officer position on or about June 21, 2011. When the Forest Service Selected Grosz for the Public Services Staff Officer position, Plaintiff was fifty-seven years of age and Grosz was fifty-one or fifty-two years of age. Both Plaintiff and Grosz are female.

         On or about November 28, 2011, Plaintiff filed with USDA a Formal Equal Employment Opportunity (“EEO”) Complaint of Discrimination, dated November 25, 2011 (“2011 EEO Complaint”). Plaintiff's 2011 EEO Complaint alleged that she had not been selected to fill the Public Services Staff Officer position based on her age. Plaintiff's 2011 EEO Complaint also alleged that she suffered numerous instances of retaliation. On or about June 4, 2012, Plaintiff requested the appointment of an Equal Employment Opportunity Commission (“EEOC”) Administrative Judge to conduct a hearing on her 2011 EEO Complaint.

         On or about September 12, 2012, Plaintiff filed with EEOC Administrative Judge Kathleen M. Clarke a motion to “amend and consolidate, ” by which Plaintiff sought to: (a) amend her 2011 EEO Complaint to include a new claim of sex discrimination with respect to her non-selection for promotion to the Public Services Staff Officer Position; and (b) consolidate into her 2011 EEO Complaint numerous new allegations of retaliation that Plaintiff had raised with USDA in the context of a distinct, new EEO complaint. By Order, dated October 25, 2012, Judge Clarke: (a) denied Plaintiff's motion to amend her complaint to include the sex discrimination claim; and (b) granted Plaintiff's motion to consolidate her more-recent EEO complaint with her 2011 EEO Complaint. In denying Plaintiff's Motion to amend her 2011 EEO Complaint to include a claim of sex discrimination, Judge Clarke expressly determined on the merits that Plaintiff had failed to state a claim of discrimination based on sex.

         On or about May 3, 2013, Plaintiff filed with Judge Clarke a motion to amend her 2011 EEO Complaint to add three new allegations of retaliation. By Order, dated June 3, 2013, Judge Clarke denied Plaintiff's motion to amend, upon determining on the merits that the conduct alleged in the motion failed to state a claim of retaliation.

         By Decision and Order, dated August 8, 2013, Judge Clarke granted summary judgment to USDA on Plaintiff's 2011 EEO Complaint. USDA moved for such relief and Plaintiff responded in opposition that motion. Judge Clarke granted summary judgment to USDA after considering briefing by both parties on USDA's motion for summary judgment, dated February 14, 2013. Judge Clarke granted summary judgment to USDA upon determining, inter alia, that Plaintiff had: (a) failed to state a prima facie case of retaliation with respect to any conduct alleged in connection her 2011 EEO Complaint; and (b) failed to prove that USDA's legitimate, non-discriminatory explanation for not selecting Plaintiff to fill the Public Services Staff Officer position was pretext for age discrimination.

         By Final Order, dated July 16, 2014, USDA decided as a matter of final agency action to implement fully Judge Clarke's rulings on Plaintiff's 2011 EEO Complaint. Plaintiff received service of that USDA Final Order on August 1, 2014. The USDA Final Order provided notice to Plaintiff that, inter alia, she had the right to appeal Judge Clarke's decisions and the USDA Final Order by filing an appeal with the EEOC Office of Federal Operations on an enclosed form within thirty days of her receipt of the USDA Final Order. The USDA Final Order provided further notice to Plaintiff that, inter alia, she was required to provide USDA with proper notice in the event that she filed an appeal or other papers with the EEOC challenging Judge Clarke's decisions or the USDA Final Order upon her 2011 EEO Complaint. The USDA Final Order provided further notice to Plaintiff that, inter alia, she also had the right to file a civil action in an appropriate United States District Court within ninety days of her receipt of the USDA Final Order, if no appeal had been filed with the EEOC. The USDA Final Order provided further notice to Plaintiff that, “[u]nless an appeal is filed with the EEOC, failure to file a civil action within ninety (90) calendar days may result in the dismissal of your civil action.”

         Plaintiff did not file an appeal with the EEOC challenging Judge Clarke's decisions or the USDA Final Order issued upon her 2011 EEO Complaint. Plaintiff did not commence a civil action within ninety days of receiving the USDA Final Order on August 1, 2014.

         The Complaint that Plaintiff filed in the present action on June 19, 2015, is the first civil complaint that Plaintiff filed in a United States District Court with respect to the subject matter of her 2011 EEO Complaint. All but one of the retaliatory acts that Plaintiff alleges in Count Three of her Complaint were previously alleged by Plaintiff, and resolved by Judge Clarke, in the above referenced proceedings that began with her 2011 EEO Complaint. The one retaliatory act that Plaintiff alleges in Count Three of her Complaint, but which she did not previously allege in the above-referenced proceedings that began with her 2011 EEO Complaint, is the “unjustified reprimand” alleged in Paragraph 56 of her Complaint. The “unjustified reprimand” referred to in Paragraph 56 of Plaintiff's Complaint refers to a letter of reprimand that Plaintiff received from Madrid on or about May 21, 2013. Plaintiff did not report her claim of retaliation in the form of the unjustified reprimand to agency EEO personal.

         From April 2010 to November 2014, Madrid held the position of Forest Supervisor on the GMFLNF. As Forest Supervisor, Madrid was the most senior official on the GMFLNF and was responsible for all aspects of GMFLNF management. A Forest Leadership Team (“FLT”) composed of the Forest Supervisor, District Rangers, Staff Officers, and other permanent and ad hoc Forest representatives was responsible for, among other things, developing Forest-wide strategic goals and supporting and advising Madrid with respect to Forest-wide matters, including, but not limited to, budgeting, programming, and workforce ...


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