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Rouse v. Fanning

United States District Court, M.D. Tennessee, Nashville Division

November 9, 2016

ERIC K. FANNING, as Secretary, Department of the Army, Defendant.



         Before the Court is the Defendant's Motion for Summary Judgment (Doc. No. 55). For the reasons set forth herein, the motion will be granted and this action dismissed.


         The facts set forth herein are drawn directly from Plaintiffs Response to Defendant's Statement of Undisputed Facts (Doc. No. 63), unless otherwise indicated.


         Plaintiff was employed by the Department of the Army at the Fort Campbell, Kentucky, Civilian Personnel Advisory Center ("CPAC") as a Human Resources Assistant, GS 0203-07, from August 15, 2010 until June 18, 2011. From August 15, 2010 until February 27, 2011, Shanna Pinckney served as Plaintiffs first line supervisor. From February 28 until June 17, 2011, Kim Santiago served as Plaintiffs first line supervisor. Plaintiff was reassigned to Santiago in an effort to alleviate Plaintiff s concerns regarding Pinckney. Plaintiff s second level supervisor was Valencia Bratton, Human Resources Officer.

         While working as a Human Resources Assistant, Plaintiff filed two charges with the Equal Employment Opportunity ("EEO") office in Fort Campbell, Kentucky, the first in October 2010 and the second in March 2011. Plaintiff s October 2010 EEO charge alleged discrimination and a hostile work environment based on her race (African American), color (black), sex (female), and age (over 40). Plaintiff withdrew her October 2010 charge for personal reasons.

         In her Amended Complaint in this Court, Plaintiff alleges that, after she withdrew the first EEO charge, she was "subj ected to a hostile work environment and reprisal for her EEO complaint." (Compl. ¶ 11.) She alleges that she was "held to harsher standards" and denied opportunities that were afforded her colleagues who had not filed EEO charges. (Id.)

         Plaintiff s second EEO charge again alleged discrimination based on color, sex, and age, and also alleged reprisal for prior protected activity arising from 14 events from December 2010 through March 2011. On August 7, 2012, a final agency decision issued from the Department of the Army finding that Plaintiff was not discriminated against on any basis set forth in her second EEO complaint. Plaintiff was notified of her appeal rights, but she did not file an appeal to the Equal Employment Opportunity Commission or file a timely civil action in the United States District Court.

         Plaintiff alleges in her Amended Complaint in this Court that the retaliatory treatment related to her having filed her first and second EEO charges continued up until she left her position at the CPAC in June 2011. (Compl. ¶ 14.)

         The Farewell Luncheon

         On June 18, 2011, Plaintiff voluntarily left her position as a Human Resources Assistant at CPAC and accepted a job with the U.S. Army Corps of Engineers in Nashville, Tennessee. Prior to Plaintiffs departure, Santiago planned a luncheon in the Plaintiffs honor. Farewell luncheons traditionally were used to show appreciation for the contributions of outgoing CPAC employees. CPAC farewell luncheons are voluntary for the outgoing employee as well as the attendees. (See Doc. No. 56-4, Santiago Decl. at 3-5. )[1]Plaintiff initially indicated to Santiago that she did not want the fuss of a luncheon and wished to leave quietly. Santiago told the Plaintiff to think about it and, on June 13, 2011, emailed Plaintiff asking her where she wanted to go for her going-away luncheon. Plaintiff responded to Santiago's email by stating "if we must the Southern Buffet at Cole Park Commons would be ok. Thanks." (Santiago Decl. at 4.) On 13 June 2011, Santiago responded to the Plaintiff by stating "Yes we must and thanks!!" Plaintiff replied by telling Santiago: "Yes Ma'am. You are welcome and thank you." (Santiago Decl. at 3-4). After the June 13, 2011 email, the Plaintiff did not express any feelings to Santiago about the luncheon.

         The luncheon was held on June 17, 2011. Plaintiff claims that Bratton warned her at the luncheon not to go to Nashville speaking badly of the CPAC office because she might wish to return to Fort Campbell. Another employee added, "yeah because we do the [personnel] actions." (Doc. No. 56-21, at 2.) However, the overall tenor of luncheon was positive, and Plaintiff admits she is the only attendee who recalls hearing any specific negative or derogatory comments.

         Non-Referral for GS-0301-09 Position

         The position of Administrative Specialist, GS-0301-09, located at the Mission Support Element's Director's office at the headquarters of the 101st Airborne Division, Fort Campbell, Kentucky, was announced on April 18, 2012 and closed on April 25, 2012. Plaintiff applied for the position on April 25, 2012. Plaintiff was not among those candidates referred to the selecting official for the position.

         Derrick Graves was the Human Resource specialist who rated the applicants and referred them to the selecting official. In June 2012, Plaintiff emailed Graves to inquire why she was not referred to the selecting official for the Administrative Specialist position. Graves responded that she did not meet a sufficient number of skills to be rated as best qualified on the referral list. (Doc. No. Doc. No. 56-10, Graves Decl. at 6; Doc. No. 56-17, email exchange between Graves and Plaintiff)[2]

         Neither Kim Santiagonor Valencia Bratton was involved in generating the referral list. They became involved after Plaintiff inquired why she was not referred. (Doc. No. 56-3, Bratton Decl. at 5-6; Doc. No. 56-4, Santiago Decl. at 7-8; Doc. No. 56-10, Graves Decl. at 5.) In her Response to Defendant's Statement of Undisputed Facts, Plaintiff states that she "believes that Mr. Graves was influenced by Ms. Santiago and Ms. Bratton." (Doc. No. 63, at ¶30.) Her belief is not substantiated by any citation to the record.

         When Graves made her aware of Plaintiff s inquiry, Santiago directed a second quality review by senior HR Specialist Victoria Zimmerman, who determined that Graves had made an error in generating the referral list. (Santiago Decl. at 7-8; Doc. No. 56-9, Zimmerman Decl. at 5-6.) Graves committed the administrative error by referring the seven applicants who matched the required skills and one desired skill when he should have referred all twelve of the applicants for the position, as each had the required skills. (Graves Decl. at 5; Zimmerman Decl. at 6; Santiago Decl. at 7-8.)

         In letters dated July 23, 2012, the Agency informed Plaintiff and four other applicants in accordance with 5 C.F.R. § 335.103(c) that a review had been conducted and that they should have been referred but had not been due to an error in the rating process. (Doc. No. 56-18.) The letters further notified the candidates that each of them would have priority consideration for the next Administrative Support Specialist position announcement at Fort Campbell, Kentucky. (Id.) Rouse was the only one of the five non-referred candidates who had engaged in prior protected Title VII activity at Fort Campbell.

         Final EEO Complaint

         On September 20, 2012, Plaintiff made initial contact with the EEO office at Fort Campbell about her non-referral for the GS-301-09 position. On September 28, 2012, Plaintiff filed her Formal Complaint of Discrimination, which is the underlying basis for the action in this Court. Her formal EEO charge cited reprisal as the only basis for her claim. In the EEO charge, Plaintiff complains generally about experiencing "constant denials of placements and advancements" because of her prior EEO activity (Doc. No. 56-21, at 1) and specifically identifies the following as retaliatory actions:

(1) Valencia Bratton or other prior supervisors caused her non-referral for the GS-0301-09 Administrative Specialist position in July 2012;
(2) she was "ordered" to attend the farewell luncheon held in her honor in June 2011 (id. at 2);
(3) Bratton commented at the farewell luncheon that Plaintiff should not "go to Nashville talking bad about [CPAC] because [she] may want a job back at Fort Campbell, " and this comment was reinforced by Sara Barksdale, who added, "yeah because we do the actions" (id.);
(4) Bratton used her position to thwart Plaintiff s attempts to seek a promotion in November or December 2010 when she applied for a developmental position within CPAC; and
(5) Bratton "continued to abuse her position" to influence Plaintiff s non-selection for several other promotions she sought during 2011, prior to Plaintiffs accepting the job in Nashville (id. at 3).

         After the investigation ended, a Final Agency Decision (FAD) was issued on May 28, 2014, finding that Plaintiff was not a victim of retaliation and setting forth her appeal rights. Plaintiff thereafter filed suit in this Court on August 26, 2014.

         Subsequent Employment History

         On April 6, 2014, Plaintiff changed job series to a GS-0203-07 HR Assistant position with the Army in Kentucky. On April 20, 2014, Plaintiff changed job series to an Army GS-201-07 HR Specialist position with promotion potential to GS-11 in Kentucky. Plaintiff was promoted to GS-201-09 HR Specialist with the Army on ...

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