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Baracker v. Zinke

United States District Court, D. New Mexico

June 23, 2017



          William P. Lynch, United States Magistrate Judge

         Defendant Ryan Zinke, Secretary of the United States Department of the Interior (“DOI”), moved for summary judgment on all of Plaintiff Theresa Baracker's claims. (Doc. 31.) The parties stipulate that the claims are as follows: Claim 1 - discrimination based on a hostile work environment created by Baracker's former supervisor, Michelle Tenorio; and Claim 2 - retaliation, which occurred when Tenorio disclosed the content of Baracker's informal Equal Employment Opportunity (“EEO”) complaint to other employees, and when Baracker's second-level supervisor and Director of the Office of the Special Trustee, Ethel Abeita, rescinded Baracker's internal request for Tenorio's travel vouchers from 2005. (Doc. 37 Ex. 3 (“Stipulation Regarding Claims Being Pursued by Plaintiff”).) For the reasons explained herein, I grant Secretary Zinke's motion for summary judgment, enter judgment in favor of the Defendants, and dismiss this case with prejudice.

         Unless otherwise noted, the following facts are undisputed. Baracker works for DOI. Between January 24 and May 22, 2011, Baracker served as a Supervisory Records Management Specialist, Branch of Southern Field Support Services, Division of Records Management Policies, Procedures and Training, Office of the Special Trustee (“OST”), Office of Trust Records (“OTR”). Between January 24 and May 22, 2011, Tenorio was Baracker's immediate supervisor and served as the Supervisory Program Analysis Officer, OTS. Between January 24, 2011, and September 8, 2012, Abeita was Baracker's second-level supervisor and served as the Director of the OTR. Benedict “Alley” David is another DOI employee, in roughly the same position as Baracker and during the same relevant time period, who was supervised by Tenorio and had Abeita as his second-level supervisor. David served as a Supervisory Records Management Specialist, Branch of Northern Field Support Services, OST. Baracker alleges that the hostile work environment created by Tenorio existed between March 9 and April 18, 2011.

         Sometime between approximately 2003 and 2006, Baracker was Tenorio's supervisor. An issue arose regarding Tenorio's use of a government credit card and the loss or theft of a government laptop. During this period, in 2004, Tenorio apparently told another DOI employee, Deborah Benally, that Tenorio enjoyed pushing Baracker's buttons and making Baracker cry.

         Baracker worked on an alternative work schedule (“AWS”) that allowed her to have every other Friday off. On March 9, 2011, Tenorio advised Baracker that she was considering removing Baracker from her AWS. While Tenorio declared, under penalty of perjury, that she “was contemplating recommending that all managers be placed on a standard 40-hour workweek to better handle the workload of the office” (Doc. 31 Ex. 2 at 4, ¶ 10 (Decl. of Michelle Tenorio, Mar. 22, 2017) (“Tenorio Decl.”)), Baracker would have been the only manager affected by this change.

         While Baracker was never removed from her AWS, Tenorio did schedule at least two managers meetings during the two pay periods following this conversation. Tenorio did not generally schedule managers meetings on Fridays.

         Two days later, on March 11, 2011, Baracker asked Tenorio to provide discretionary training on OST's Versatile system (a computer and data management system) to Baracker's staff. Tenorio denied the request and instructed Baracker to conduct the training herself. Baracker asserts that she was unfamiliar with the Versatile system and unable to provide the training. Approximately two weeks later, David made a similar request of Tenorio, which was granted. The training was ultimately provided to David's staff and Baracker's staff sometime in late June 2011.

         On March 15, 2011, Tenorio sent Baracker an email asking her to follow up on a records issue and specifically instructing Baracker to “not delegate [this] to Claudeen [Crank] at this time.” (Doc. 31 Ex. 2 at 3; Doc. 35 at 11.) Crank was Baracker's subordinate at the time. Tenorio provided no reason or explanation, in the email, as to why the task could not be delegated to Crank, despite the fact that Crank had served as the point of contact for the records issue for several years.

         Baracker followed up with Tenorio with a status report on the issue several days later. Tenorio responded by email stating, “Received word you made contact. Keep me posted, will you have Claudeen work on this issue now?” (Doc. 31 Ex. 2 at 9.) Baracker responded that she and Crank would work on the issue and keep Tenorio apprised as necessary.

         On March 17, 2011, the Office of Justice Services (“OJS”) emailed Abeita seeking permission to return records to District II, in Arizona, for processing and eventual return to the American Indian Record Repository (“AIRR”). On March 18, 2011, Tenorio emailed Baracker and instructed her to draft a response memorandum to OJS granting the request. The email stated “Try to work this out so that we are not going back and forth with memoranda. All drafts and reviews should be completed and ready for final before coming to me.” (Doc. 31 Ex. 2 at 16.)

         Tenorio again emailed Baracker on March 24, 2011, seeking a status update. Baracker responded that she was finalizing the memorandum. Baracker gave the memorandum to Tenorio on March 25, 2011. The memorandum contained grammatical errors and other mistakes. Tenorio emailed Baracker and expressed concerns about the written product, and asked questions like, “Are you not thoroughly reviewing your correspondence?”; “Are you not hearing or understanding verbal direction?”; and “Are you rushing? Yesterday was another occasion where I saw you rushing and desperately trying to get me information (day before your RDO).” (Id. at 14.) Ultimately, the memorandum went back and forth between Tenorio and Baracker several times before being sent out.

         On April 13, 2011, Tenorio emailed Baracker informing her that two of her subordinates failed to log off at the end of the day, and therefore failed to comply with OST rules concerning computer usage. On April 14, 2011, Baracker cleared up the issue as to one employee and informed Tenorio that she would speak with the other subordinate, Novella Hunt, about logging out. Baracker did speak with Hunt.

         Later on April 14, 2011, Hunt drafted an inappropriate and uncomplimentary email and sent it, evidently inadvertently, to Tenorio. Hunt rapidly apologized. Later still, Tenorio again emailed Baracker and let her know that Tenorio and Hunt had spoken, Tenorio had reiterated the importance of logging off, and Hunt had again apologized. Tenorio's email read as follows:

I don't know how you relayed this information to Novella but obviously she was quick to react. I did talk to her after our conference call this afternoon and did reiterate the importance related to OST Network Rules of Behavior and Standard rules [sic] of Conduct. She again did verbally apologize ...

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