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Warren Gladden v. Thomas Vilsack Secretary

May 25, 2011


The opinion of the court was delivered by: Stengel, J.


This is an employment discrimination case. The plaintiff, Warren Gladden, claims he was discriminated against on the basis of his race and his age when he was not considered for a position with the United States Department of Agriculture ("USDA"). The defendant has filed a motion to dismiss his complaint, and for the reasons set forth below, I will grant the motion.


Mr. Gladden filed his complaint against the USDA on October 5, 2010. The USDA filed a motion to dismiss on January 11, 2011, and Mr. Gladden filed his response on April 4, 2011. This motion is ripe for judgment.

The facts alleged in Mr. Gladden's complaint are as follows: he is an African American male over 40 years old. Compl. ¶¶ 7, 8. On January 7 and January 31, 2008, vacancy announcements were issued for a position as a "Supervisory Program Specialist," grade GS-14, for the United States Forest Service. Compl. ¶¶ 22, 23 (citing Vacancy Announcement Nos. ADS08-NRS-3289G and ADS08-NRS-3289DP). The Forest Service is a bureau of the USDA. Id. ¶ 2. The position for which Mr. Gladden applied involved performing tasks related to the administrative management of an organization, interpreting administrative policies, developing organizational policies, and performing administrative and human resource management functions, among other things. Id. ¶ 25. The vacancy announcements included descriptions of relevant qualifying experience. Id. at ¶ 26. Mr. Gladden applied for position number ADS08-NRS-3289D on January 31, 2008. Id. at ¶ 27.

Mr. Gladden did not receive an invitation to interview for the position and contacted the USDA on April 16, 2008, to inquire about the status of his application. Id. at ¶ 30. He was contacted by Sue Barro the same day and told that a panel of six people had reviewed the submitted applications, selected the top five applicants, chosen three to interview, and selected a person for the position. Id. at ¶ 32. Mr. Gladden contacted a member of the panel, Mr. Roy Patton, to ask why he was not identified as one of the top five candidates for the position, and Mr. Patton responded:

The panel was presented with an applicant pool of current federal employees, many with broad experience as managers of budgeting; acquisition management; civil rights; and engineering, safety & facilities. The top candidates that were referred to the selecting official were all employees with more than 10 years of federal service with a large agency. In addition, these candidates had experience in managing groups of employees within a multiple state region for their respective agencies.

You applied under a program that allows persons not already in the federal system to apply for employment with federal agencies. This process allows agencies to hire workers not currently in the federal system when there are no federal employees who are qualified for and interested in a particular position when it is open and needs to be filled. In the case of the position for which you applied, there was a pool of qualified federal applicants and the selecting official drew from that pool.

Compl. ¶ 34 (citing Attachment 6 to Compl.). As alleged in Mr. Gladden's complaint, the USDA's response to an interrogatory indicated that Mr. Patton's explanation of the process was correct: it reiterated that government agencies determine whether a job announcement will be a "Government status and/or a Demonstration announcement" and that the position for which Mr. Gladden had applied was listed as both. Compl. ¶ 37. This is why there were two announcements - one ending with a "G" and one ending with a "DP" - for the same position. After making a further request for information from Mr. Patton about the process used to select an individual for the position, Mr. Patton explained that:

What I described in the previous message was how we exercised our authority to review applicant sources before determining who would be hired based on job-related criteria. That broad authority does not require us to review all applicant sources and after reviewing the applications from current federal employees (they were grouped together as one applicant source) we found that we could make a selection without reviewing other applicant sources.

Compl. ¶ 41 (citing Attachment 6 to Compl.). Mr. Gladden includes in his complaint another representation from a USDA employee confirming Mr. Patton's characterization: "The decision to advertise the program to the general public under the Demonstration program (DP announcement) is optional, and was made in this situation in order to provide an expanded applicant pool in the event that the government (G) vacancy announcements did not produce a sufficient number of qualified internal candidates." Id. at ¶ 43 (citing Gladden ROI 177-185). Mr. Gladden attests in his complaint that "of the 26 DP [non government] announcement applicants, 24 made the certificate of eligibles, including Plaintiff, but were never considered for the instant position. Protected group members, like Plaintiff, who applied under the DP announcement, were denied equal opportunity which the merit principles of 5 U.S.C. § 2301(b) says they are entitled to." Id. at ¶ 45. The person ultimately chosen for the position was Sandy Shultis, who was white and was born fifteen years after Mr. Gladden. Id. at ¶ 48.

Mr. Gladden's complaint contains two counts: Count I alleges racial discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e ("Title VII") and Count II alleges age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"). Mr. Gladden states that the reasons offered by the USDA for its decision not to hire him were pretext to hide discriminatory animus. Compl. ¶ 51, 53.


A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure examines the legal sufficiency of the complaint. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The factual allegations must be sufficient to make the claim for relief more than just speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In determining whether to grant a motion to dismiss, a federal court must construe the complaint liberally, accept all factual allegations in the complaint as true, and draw all ...

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