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Wilson v. Vilsack

July 14, 2010


The opinion of the court was delivered by: O'neill, J.


Plaintiff, Emily Wilson, alleges that defendant, Thomas J. Vilsack, Secretary of the United States Department of Agriculture, (1) discriminated against her on the basis of her gender; (2) retaliated against her because she engaged in protected activity; and (3) subjected her to a hostile work environment.*fn1 Defendant moves for summary judgment on all three claims. Presently before me are defendant's motion for summary judgment, plaintiff's response and defendant's reply. For the following reasons, I will grant defendant's motion for summary judgment.


I. Factual Background

Plaintiff was a program technician at the Bucks County, Pennsylvania office of the Consolidated Farm Service Agency. The CFSA is a branch of the Department of Agriculture that administers conservation and agricultural credit programs.*fn2 The CFSA's programs are locally administered by state and county committees.

The state committees are comprised of farmers appointed by the Secretary. The Secretary v. also appoints an executive director for each state, who is responsible for overseeing all CFSA operations within that state. During the time period relevant to this case, Richard Pallman was the executive director for Pennsylvania.

The county committees are comprised of locally elected farmers. The county committee hires and supervises a county executive director. The county executive director, in turn, supervises the program technicians, such as plaintiff, who are responsible for implementing CFSA policy at the county level. During the time period relevant to this case, the Bucks County executive director was Darrell Tribue. Tribue supervised an office comprised of plaintiff and two other female program technicians.

In 2006, CFSA administration in Washington, D.C. directed the Pennsylvania state committee to review staffing levels in each of the county offices. That review revealed that all county offices in Pennsylvania were understaffed. Some, however, were more understaffed than others. In order to remedy this situation, CFSA administration developed a plan--entitled PM-601--to allocate resources more equitably. In implementing PM-601, the Pennsylvania state committee determined that, relative to the rest of the County offices, the Bucks County office was overstaffed by one individual and the Chester County office was understaffed by one individual. The state committee decided that the program technician who was selected for reassignment from the Bucks County office would be offered the position in the Chester/Delaware office.

In June 2006, the Bucks County committee was informed that it must designate one of its employees for reassignment. In response, the Bucks County committee sent a letter to the state committee explaining its disagreement with the state committee's conclusion that the Bucks County office was overstaffed. On November 14, 2006, however, the Bucks County committee, in consultation with Tribue, reluctantly designated plaintiff for reassignment.

By letter dated December 15, 2006, plaintiff was informed of the Bucks County committee's decision. The letter stated that, effective February 18, 2007, she would be reassigned as program technician for the Chester County office. Her paygrade and salary would remain the same. Because the Chester County office was outside her "normal commuting area," however, she would be entitled to government reimbursement for the cost of her relocation as well as up to eighty hours of paid administrative leave to arrange for such relocation. Finally, the letter informed plaintiff that the reassignment was mandatory--if she declined the reassignment, she could be terminated. In that event, she might be entitled to certain benefits such as severance pay.

On December 18, 2006, plaintiff declined the reassignment. On February 27, 2007, she was informed of a state committee proposal to terminate her for failure to report for duty. The state committee gave her thirty days to respond to the allegations contained in the letter. On April 2, 2007, the state committee terminated her.

II. Procedural History

On March 8, 2007, plaintiff filed a formal charge with the Equal Employment Opportunity office of the CFSA. Following a lengthy EEO discovery process, she*fn3 filed this lawsuit against defendants Pallman and Edward T. Schafer, then-Secretary of the United States Department of Agriculture.*fn4 On May 14, 2009, plaintiff filed an amended complaint. Her amended complaint included a Bivens claim and two Title VII claims against Pallman and Vilsack.

On August 7, 2009, I dismissed the Bivens claim against both defendants as well as the Title VII claim against Pallman in his individual capacity. I also dismissed plaintiff's complaint for failure to allege sufficient well-pleaded facts to support a claim of gender-based discrimination. However, I granted plaintiff leave to file a second amended complaint, which she did on August 20, 2009.

Plaintiff's lawsuit presently includes only claims of gender-based discrimination, retaliation and hostile work environment against Vilsack in his official capacity.


Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is proper "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." An issue of material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Summary judgment will be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment has the burden of demonstrating that there are no genuine issues of material fact. Id. at 322-23. If the moving party sustains the burden, the nonmoving party must set forth facts demonstrating the existence of a genuine issue for trial. See Anderson, 477 U.S. at 255.

When a properly supported motion for summary judgment is made, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The adverse party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). However, the "existence of disputed issues of material fact should be ascertained by resolving all inferences, doubts and issues of credibility against" the moving party. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (citations and quotation marks omitted).


Defendant moves for summary judgment on all three of plaintiff's claims.*fn5 I will discuss each argument in turn.

I. Discrimination Based on Gender

A. Legal Precepts

42 U.S.C. § 2000e-2(a)(1) makes it unlawful for any employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin...." The Court of Appeals has held that a plaintiff invoking section 2000e-2(a)(1) may prove her case under either the pretext theory, set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the mixed-motive theory, originally set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and subsequently amended by statute. See Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008). Although plaintiff may pursue her case under both theories, see Armbruster v. Unisys Corp., 32 F.3d 768, 781 n.17 (3d Cir. 1994) (overruled on other grounds Smith v. Wilkinsburg, 147 F.3d 272, 277-78 (3d Cir. 1998), here she has pursued only a pretext theory in response to the motion for summary judgment. Pl.'s Br. at 15 (discussing pretext theory). In reviewing the evidence in this case, I am mindful that my task is not to second guess an employment decision; rather, I must determine whether the employment decision was motivated by an illegal discriminatory purpose. See Waris v. Heartland Home Healthcare Servs., Inc., No. 09-1904, 2010 WL 538054, at *2 (3d Cir. Feb. 17, 2010).

Proof of discrimination under a pretext theory involves a burden shifting analysis. See Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). First, the plaintiff must establish a prima facie case of discrimination: (1) she was a member of a protected class; (2) she was qualified for the position she sought; (3) she was subject to an adverse employment action despite being qualified; and (4) the adverse employment action occurred under circumstances that gave rise to an inference of unlawful discrimination. See Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003); Waldron v. SL Indus., Inc., 56 F.3d 491, 494 (1995). If the plaintiff is able to establish a prima facie case, an inference of discriminatory motive arises and the burden of production shifts to the defendant to put forth a legitimate non-discriminatory reason for its actions. See id. This is a relatively light burden which "can [be] satisf[ied]... 'by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision.'" See Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (quoting St. Mary's Honor Ctr. v. Hicks, 508 U.S. 502, 509 (1993)). The defendant need not establish that the proffered reason actually motivated its decision but only that it may have. Id. Finally, if the defendant is able to put forth a legitimate, non-discriminatory reason for its actions, the plaintiff must demonstrate that the proffered reason is pretextual. See id. For the plaintiff to succeed under a pretext theory, she must produce evidence from which a factfinder could either: (1) reasonably disbelieve the defendant's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the defendant's action. See Fuentes, 32 F.3d at 764; see also Watson v. Southeastern Pennsylvania Transp. Auth., 207 F.3d 207, 215 (3d Cir. 2000) (holding that in order for a plaintiff to succeed under a pretext theory, she must prove that the impermissible factor was the determinative factor in the adverse employment action).

B. Application

Plaintiff alleges two adverse employment actions: (1) reassignment; and ...

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