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Bunn v. Perdue

United States District Court, D. New Mexico

June 3, 2019

VIRGIL BUNN, Plaintiff,
SONNY PERDUE, as Secretary, United States Department of Agriculture, Defendant.


          Laura Fashing, United States Magistrate Judge.

         THIS 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.

         I. Statement of Facts[1]

         Virgil 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 id.

         Mr. 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.

         In 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.

         Mr. 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.

         Beginning 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. Id.

         Four 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 characteristic. Id.

         On 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.

         On 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[2] 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.

         Mr. 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.

         The day 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.

         Mr. 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.

         On 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.

         Before 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.[3] Doc. 32-2 at 7, ¶ 19; Doc. 32-3 at 9, ¶ 25.

         Two 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.

         On 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.

         Nearly 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.[4] On July 21, 2017, the Office of Federal Operations issued its decision affirming the Final Agency Decision. UMF 29.[5]

         II. Discussion

         A. Legal Standard for Summary Judgment

         Summary 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.

         The 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).

         At the 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).

         B. The Defendant's Motion for Summary

         In 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, [6] in 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.

         Defendant 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.

         With 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.

         Defendant 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 Doc. 39.

         For the 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.

         C. Mr. Bunn's ...

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