United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing, United States Magistrate Judge.
MATTER comes before the Court on defendant Sonny Perdue's
Motion for Summary Judgment. Doc. 32. Plaintiff Virgil Bunn
opposes the motion. See Doc. 39. The motion was
fully briefed on December 20, 2018. See Docs. 44,
46. The parties consented to my entering final judgment in
this case. See Docs. 11, 12, 13. For the following
reasons, I GRANT defendant's motion.
Statement of Facts
Bunn started working on January 31, 2011 as a Human Resources
Assistant at the U.S. Forest Service's (USFS) Albuquerque
Service Center. UMF 1. At the Service Center, he was referred
to as a “Contact Center agent, ” and his
responsibilities included receiving calls or other HR
inquiries regarding topics such as benefits, Workers
Compensation, and payroll. See UMF 6. Contact Center
agents were responsible for creating a case based on each
inquiry, researching the solution, and logging the response
into the Customer Relations Management (CRM) system. See
Bunn was subject to a one-year probationary period. UMF 1. He
is male and was born in October 1962. UMF 2. Melanie
Wasserman was Mr. Bunn's first-line supervisor from his
start date until early October 2011, and again from early
December 2011 until he was terminated on January 6, 2012.
UMFs 3, 23. Tamara Holguin was a lead trainer working on Ms.
Wasserman's team. Id. She reviewed the work of
Contact Center agents working under Ms. Wasserman, including
Mr. Bunn's work. Id.
October 2011, Mary Furr became Mr. Bunn's first-line
supervisor. UMF 4. Ms. Furr continued to supervise Mr. Bunn
until December 6, 2011. Id. Isabel Peters was a lead
trainer working on Ms. Furr's team, and she reviewed the
work of Contact Center agents working under Ms. Furr,
including Mr. Bunn's work. Id.
Bunn took the CRM Basics and the Contact Center
(“CC”) Basics training courses multiple times.
UMF 7. Mr. Bunn also received additional training from Ms.
Wasserman, Ms. Holguin, Ms. Furr, and Ms. Peters.
Id. Beginning in October 2011, Ms. Furr noticed that
Mr. Bunn was not performing at a satisfactory level. UMF 8.
Mr. Bunn had problems creating cases, providing the
appropriate information in the case notes, researching the
right answers, and forwarding inquiries to the correct
departments. Id. On October 17, 2011, Ms. Furr
directed Mr. Bunn to send all his cases to Ms. Peters for
review. Id. Ms. Furr documented her concerns about
Mr. Bunn's performance in contemporaneous notes. See
Id. Ms. Furr kept Mary Nelson-Mr. Bunn's second-line
supervisor-informed of Mr. Bunn's job performance. UMFs
5, 9. Ms. Furr informed Ms. Nelson that Mr. Bunn was not
handling his caseload properly, and that he had hundreds of
unread emails. UMF 9.
in November 2011, Ms. Furr and other managers raised concerns
about Mr. Bunn's job performance with Employee Relations.
UMF 10. Specifically, on November 10, Ms. Furr informed Aaron
Aragon in Employee Relations that Mr. Bunn was not keeping up
with his caseload, was missing notes and research, did not
respond to emails, was not using Quick Codes and Branch
Scripts, had missed a training session, and lacked focus.
days later, on November 14, 2011, Mr. Bunn first complained
to Ms. Furr about Ms. Peters' communications with him.
UMF 11. He complained to Ms. Furr that Ms. Peters was
sarcastic, and that he did not like the tone of her
communications. Id. Mr. Bunn provided emails to Ms.
Furr as examples. See Id. Ms. Furr reviewed the
emails and believed that Ms. Peters' communications were
professional and direct. Id. Ms. Nelson also
reviewed the emails and thought that they were direct and
fair. Id. To be sensitive to Mr. Bunn's
feelings, however, Ms. Furr cautioned Ms. Peters about her
word choices. Id. None of Ms. Peters'
communications with Mr. Bunn, however, contained any
reference to Mr. Bunn's age, sex, or any other protected
characteristic. Id. Mr. Bunn also never told Ms.
Furr or anyone else in management that Ms. Peters was
harassing him based on his age, sex, or any other protected
November 25, 2011, Mr. Bunn sent Ms. Nelson a training
proposal and asked to be reassigned back to Ms. Holguin as
his lead trainer. UMF 12. In his proposal Mr. Bunn recognized
there were issues concerning his cases, including whether he
was providing detailed information in his case notes, the
degree and level of research he performed before closing a
case and/or referring it to another Provider Group, and
whether he was forwarding cases to the correct Provider
Group. See Id. In late November, Ms. Nelson sent Mr.
Bunn's proposal to the Branch Chief, Richard Martinez.
Id. At around the same time, Ms. Nelson obtained
additional information from Ms. Wasserman and Ms. Furr
regarding Mr. Bunn's job performance. UMF 13. Ms.
Wasserman informed Ms. Nelson that Mr. Bunn had missed some
key items in his cases, did not complete his cases in a
timely manner, and had begun cancelling training sessions.
Id. Similarly, Ms. Furr informed Ms. Nelson that Mr.
Bunn had not kept up with his cases, was not entering
appropriate notes in many of his cases, and was not
performing sufficient research for many of his cases.
Id. Armed with this additional information, Ms.
Nelson decided to propose terminating Mr. Bunn. Id.
On December 1, 2011, Ms. Nelson wrote a proposal to terminate
Mr. Bunn. UMF 14. In the proposal, Ms. Nelson explained that
Mr. Bunn was missing key items, was struggling with basic
topics despite repeating basic training courses, and that he
was far behind where he should be. Id.
December 2, 2011, Ms. Wasserman sent an email regarding Mr.
Bunn's job performance to Arthur Gonzales, Assistant
Director for Human Resources Management; Richard Martinez,
Branch Chief; and Mary Nelson. UMF 15. Ms.
Wasserman said that Mr. Bunn was struggling, that
one of her “top agents” would sit with Mr. Bunn
for two hours each day, and that Mr. Bunn had to attend basic
classes twice. Id. Ms. Wasserman thought there had
been a lot of documentation and one-on-one time spent with
Mr. Bunn, but that there was no improvement and that a
request to terminate him was not unreasonable. Id.
Martinez, the Branch Chief, and Ms. Nelson met with Mr. Bunn
on December 6, 2011. UMF 16. At the meeting, Mr. Bunn asked
to be transferred from the Contact Center to the IT
Department. Id. Mr. Martinez explained that he was
not able to transfer Mr. Bunn to IT. Id. Mr.
Martinez and Ms. Nelson did agree, however, to transfer Mr.
Bunn back to Ms. Wasserman's team, effective immediately.
Id. From December 6, 2011 to January 6, 2012, Mr.
Bunn continued to work as a Contact Center agent on Ms.
Wasserman's team. UMF 18.
after Mr. Bunn was transferred back to Ms. Wasserman's
team, a Contact Center supervisor sent an email to Contact
Center employees announcing that there would be a town hall
meeting the next day with then Secretary of Agriculture Tom
Vilsack. Doc. 32-3 at 32. Due to limited seating, the agency
announced that it would randomly select ten people to attend
the meeting. Id. Mr. Bunn was not one of the people
selected. See Id. at 31. Mr. Bunn contends that he
was not permitted to attend the town hall meeting because of
his complaint against Ms. Peters. Doc. 39 at 2.
Martinez and Ms. Nelson discussed Mr. Bunn's job
performance with Arthur Gonzales, the Assistant Director for
Human Resources Management. UMF 17. Ms. Nelson informed Mr.
Gonzales that Mr. Bunn was performing far below his expected
performance level, that he was not receptive to constructive
criticism, that he missed key items, and that he failed to
show up for scheduled training sessions. Doc. 32-4 at 2,
¶ 4; see also Id. at 4-5. Mr. Martinez and Ms.
Nelson informed Mr. Gonzales that Mr. Bunn had received
adequate training and had been given the opportunity to
improve. Doc. 32-4 at 2, ¶ 5. Although Mr. Bunn concedes
he received training, he claims that “the Agency failed
to provide all the training to ensure [he] would be fully
successful with his new Supervisory Team/Mary Fur[r]-Isabel
Peters in October 2011.” Doc. 39 at 1; Doc. 39-6 at 16.
Based on the information he received from Mr. Martinez and
Ms. Nelson, and from Mr. Bunn's supervisors, Mr. Gonzales
decided to terminate Mr. Bunn. Doc. 32-4 at 3, ¶ 7.
December 7, 2011, Mr. Martinez contacted Erica Nieto, an
Employee Relations Supervisor, regarding management's
proposal to terminate Mr. Bunn's employment. Doc. 32-5 at
2, ¶ 5; see also Id. at 10. Ms. Nieto followed
up with USFS management, including Mr. Gonzales, Mr.
Martinez, and Ms. Nelson, and collected information about the
proposed termination. Doc. 32-5 at 2-4, ¶¶ 4-11;
see also Id. at 10-12. Employee Relations put
together an Employee Relations case assessment of Mr. Bunn.
Doc. 32-5 at 14-15. Ms. Nieto believed that the documentation
was sufficient to warrant termination. Doc. 32-5 at 5, ¶
12. Once the case assessment was complete, Ms. Nieto sent it
to Shannon Swaziek, the Employee Relations Branch Chief.
See Doc. 32-5 at 4, ¶ 11; id. at 13.
Once Ms. Swaziek completed her review, she sent the case to
the U.S. Department of Agriculture for final concurrence and
for the delegation of authority to terminate Mr. Bunn. Doc.
32-5 at 4, ¶ 11. On January 4, 2012, Robin Heard, Deputy
Assistant Secretary for Administration of the U.S. Department
of Agriculture, delegated authority to Arthur Gonzales to
terminate Mr. Bunn. UMF 22. On January 6, 2012, Mr. Gonzales
terminated Mr. Bunn during Mr. Bunn's probationary
period. UMF 23.
his termination, on December 13, 2011, Mr. Bunn contacted the
USFS's EEO Counselor Office to initiate pre-complaint
counseling. See Doc. 44-1 at 2; Doc. 39 at 5, ¶
18; Doc. 39-8. Sometime in the ten days between December 13
and December 23, 2011, Ms. Nieto learned of Mr. Bunn's
informal EEO claim against Ms. Peters. Doc. 32-5 at 4, ¶
10; Doc. 39-8. Ms. Nieto did not inform any of Mr. Bunn's
managers about the EEO case to avoid the perception that it
influenced the decision-making. Doc. 32-5 at 4, ¶ 10.
Mr. Gonzales, the deciding official, did not know about Mr.
Bunn's EEO activity when he terminated Mr. Bunn. Doc.
32-4 at 3, ¶ 10. Ms. Furr and Ms. Nelson-Mr. Bunn's
first and second-line supervisors, respectively-also did not
know about Mr. Bunn's EEO activity during this
time. Doc. 32-2 at 7, ¶ 19; Doc. 32-3 at 9,
months after his termination, by letter dated March 12, 2012,
the USFS informed Mr. Bunn that he had the right to file a
formal discrimination complaint within 15 days of his receipt
of the letter. UMF 24; Doc. 32-6. The letter stated that Mr.
Bunn alleged that he was harassed and terminated because of
his age and sex. Id.
March 31, 2012, Mr. Bunn filed his formal employment
discrimination complaint. UMF 25; Doc. 32-7. Mr. Bunn's
complaint alleged that Ms. Peters harassed him and created a
hostile work environment, and that his managers did not
remove him from that environment. UMF 25; Doc. 32-7 at 3. The
complaint also alleged that Contact Center management
retaliated against him by excluding him from the town hall
meeting, by terminating his employment, and by failing to
provide him union representation. UMF 25; Doc. 32-7 at 3-4.
Mr. Bunn also made additional claims relating to the lack of
assistance from union representatives. Id.
four years later, on March 21, 2016, the EEOC Administrative
Judge issued an Order of Dismissal, granting the Department
of Agriculture's motion for summary judgment on all
claims. UMF 26. The Order of Dismissal noted that Mr. Bunn
had dropped his allegation of age discrimination early in the
investigation. UMF 26; Doc. 32-8 at 2 n.1. On April 7, 2016,
the Department of Agriculture, Office of Adjudication, issued
the Final Order implementing the EEOC Administrative
Judge's decision. UMF 27; Doc. 32-9. On May 25, 2017, Mr.
Bunn appealed the agency's final action. UMF 28; Doc.
32-10. Mr. Bunn did not, however, appeal the dismissal of his
age claim or his union claims. UMF 28. On July 21, 2017,
the Office of Federal Operations issued its decision
affirming the Final Agency Decision. UMF 29.
Legal Standard for Summary Judgment
judgment will be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A genuine dispute exists if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party” on the issue.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id.
movant bears the initial burden of establishing that there is
no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986). “[T]he
movant need not negate the non-movant's claim, but need
only point to an absence of evidence to support the
non-movant's claim.” Kannady v. City of
Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting
Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121,
1125 (10th Cir. 2000)). If this burden is met, the non-movant
must come forward with specific facts, supported by
admissible evidence, which demonstrate the presence of a
genuine issue for trial. Celotex, 477 U.S. at 324.
The non-moving party cannot rely upon conclusory allegations
or contentions of counsel to defeat summary judgment. See
Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847
F.2d 642, 649 (10th Cir. 1988). Rather, the non-movant has a
responsibility to “go beyond the pleadings and
designate specific facts so as to make a showing sufficient
to establish the existence of an element essential to [his]
case in order to survive summary judgment.” Johnson
v. Mullin, 422 F.3d 1184, 1187 (10th Cir. 2005)
(alteration in original) (internal quotation marks omitted).
summary judgment stage, the Court must view the facts and
draw all reasonable inferences in the light most favorable to
the non-movant. Scott v. Harris, 550 U.S. 372, 378
(2007). The Court's function “is not . . . to weigh
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249. There is no issue for
trial “unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that
party.” Id. Summary judgment may be granted
where “the evidence is merely colorable, or is not
significantly probative.” Id. at 249-50
(internal citations omitted).
The Defendant's Motion for Summary
count I of his complaint, Mr. Bunn alleges that the defendant
Department of Agriculture retaliated against him for making
an EEO claim against his supervisor, in violation of 42
U.S.C. § 2000e-3(a). Doc. 1 ¶¶ 30-33. Mr. Bunn
also seems to allege in count I that he was subjected to a
hostile work environment based on his sex and age,
violation of 42 U.S.C. § 2000e-2(a). See Doc. 1
¶¶ 7(a)-(c), 9, 13, 15, 18, 20-22, 31. Count II of
the complaint alleges that defendant deprived Mr. Bunn of his
constitutional rights “by failing and refusing [to]
protect Plaintiff based on his age and a hostile work
environment after he asserted his rights to be free from
employment discrimination, ” in violation of 42 U.S.C.
§ 1983. Doc. 1 ¶¶ 34-36.
contends that Mr. Bunn's claims of retaliation fail
because Mr. Bunn's informal complaints about Ms.
Peters' “verbal abuse” did not constitute
protected activity under Title VII, the termination process
started before Mr. Bunn contacted an EEO counselor, neither
the proposing official nor the deciding official knew of Mr.
Bunn's EEO activities, and because the agency has
articulated a legitimate, non-retaliatory explanation for its
activities, and Mr. Bunn has failed to demonstrate pretext.
Doc. 32 at 13-18. Defendant also argues that the Court should
grant summary judgment on Mr. Bunn's
“miscellaneous” retaliation claims because all
the events that Mr. Bunn complains of pre-date his EEO
counseling, making it impossible that any action was
motivated by Mr. Bunn's EEO activities. See Id.
at 18-22. Mr. Bunn argues that even though he did not make a
formal EEO complaint before the decision to terminate him was
made, defendant was on notice that he was making a hostile
work environment claim against Ms. Peters. Doc. 39 at 9-10.
Further, it could not be a coincidence that he was fired
after he complained. Id. at 11. According to Mr.
Bunn, USFS did not have sufficient documentation to fire him,
and his supervisors did not begin to document his purported
poor performance until October 2011 as pretext to justify his
termination. Id. at 10.
respect to the hostile work environment claims, defendant
argues that Mr. Bunn's allegations do not amount to the
“sufficiently severe or pervasive” conduct
necessary to alter the conditions of Mr. Bunn's
employment. Doc. 32 at 22-26. Also, there is no evidence that
any of the alleged harassment was related to Mr. Bunn's
age or sex, or any other protected characteristic.
Id. at 26-27. Mr. Bunn counters that using a
reasonable employee standard, Ms. Peters' conduct
resulted in a hostile work environment. Doc. 39 at 10. The
fact that he was required to continue to work under Ms.
Peters' supervision after he complained also shows that
he was subjected to a hostile work environment. Id.
at 11-12. And because he previously received successful
evaluations, he says that performance issues were only a
pretext for firing him. Doc. 39 at 11.
asserts that Mr. Bunn's § 1983 claims fail because
Title VII is the only avenue for a federal employee to obtain
judicial relief for employment discrimination, and because
§ 1983 only applies to state actors who violate a
federal right, not to federal officials. Doc. 32 at 27. Mr.
Bunn does not contest this assertion. See generally
following reasons, I agree that defendant is entitled to
summary judgment in his favor on Mr. Bunn's retaliation
and hostile work environment claims. I further agree that Mr.
Bunn cannot state a claim under § 1983. I therefore
GRANT defendant's motion for summary judgment.
Mr. Bunn's ...