657 F.3d 64 (1st Cir. 2011), 10-1787, Velazquez-Ortiz v. Vilsack

Docket Nº:10-1787.
Citation:657 F.3d 64
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:Medelicia VELAZQUEZ-ORTIZ, Plaintiff, Appellant, v. Thomas J. VILSACK, Secretary of the Department of Agriculture, Defendant, Appellee.
Attorney:Elaine Rodriguez-Frank, for appellant. Irene M. Solet, Attorney, Appellate Staff, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, Rosa Emilia Rodr
Judge Panel:Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.
Case Date:September 22, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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657 F.3d 64 (1st Cir. 2011)

Medelicia VELAZQUEZ-ORTIZ, Plaintiff, Appellant,


Thomas J. VILSACK, Secretary of the Department of Agriculture, Defendant, Appellee.

No. 10-1787.

United States Court of Appeals, First Circuit.

September 22, 2011

Heard May 4, 2011.

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[Copyrighted Material Omitted]

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Elaine Rodriguez-Frank, for appellant.

Irene M. Solet, Attorney, Appellate Staff, Civil Division, Department of Justice, with whom Tony West, Assistant Attorney General, Rosa Emilia Rodríguez-Vé lez, United States Attorney, and Marleigh D. Dover, Attorney, Appellate Staff, Civil Division, Department of Justice, were on brief, for appellee.

Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Medelicia Velazquez-Ortiz (" Velazquez" ) sued her employer, the Secretary of the United States Department of Agriculture (" USDA" ), claiming to be the victim of discrimination based on her age and gender, and retaliation for having complained about discrimination in the past. The district court entered summary judgment against her, and we affirm.


A. Factual Background

We recite the facts, as supported by the record, in the light most favorable to Velazquez, and draw all reasonable inferences in her favor. Ahern v. Shinseki, 629 F.3d 49, 51 (1st Cir.2010).

Velazquez began working for the USDA in 1977, at the age of 23. For approximately eighteen years, she was employed as a County Office Assistant in the field office located in Humacao, Puerto Rico. That position was initially classified as grade level 3 (" GS-3" ) and, a few years later, as GS-4 and then GS-5. In February 1995, Velazquez became a Community Development Technician, a GS-6 position. After that position was eliminated, in 1997, she accepted a part-time, GS-7 Community Development Technician job. She remained in that role, later formally denominated as Rural Development Technician, until she filed the underlying complaint with the USDA. At the time she commenced federal litigation, she was employed in the Caguas office as an Area Technician, classified as GS-7.1

Throughout Velazquez's three decades at the USDA, she has applied for a number of promotions and been rejected on several occasions. Perceiving two such rejections, as well as other alleged mistreatment by USDA officials, as acts of discrimination and retaliation, Velazquez filed four Equal Employment Opportunity (" EEO" ) complaints and one informal grievance. Because two of her EEO complaints and the informal grievance play a central role in this appeal, we discuss them in detail below.2

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1. 1996 Application and Subsequent EEO Activity

In late 1996, after receiving notice that her full-time position was going to be eliminated, Velazquez applied for a GS-7 Community Development Specialist position. A committee composed of Andres Irizarry, Wilson Almodovar, and Pedro Gómez, the Rural Housing Program Director, reviewed the applications. They recommended that the State Rural Development Director, Ileana Echegoyen, appoint Edwin Delgado to the job. Almodovar, who had been the supervisor in Humacao for some time, emphasized the need to select someone from outside the office because the current employees " were not working as a team." The committee understood that the Humacao office, with one of the largest and most complex caseloads in the Commonwealth at that time, had a high loan delinquency rate. As Gómez later stated, the committee thought that Delgado, who had worked at the USDA for many years but was not then in Humacao, " would bring new ideas from the place he had been working and he would motivate the people of the local office." 3 In a document submitted to Echegoyen, the committee members stated that they were recommending Delgado for a number of reasons, including that he fulfilled the need for " new blood." Echegoyen followed the recommendation and appointed Delgado.

In March 1997, after learning that she had not been selected, Velazquez filed an EEO complaint, alleging that the failure to offer her the GS-7 Community Development Specialist position constituted illegal gender-based discrimination and retaliation— presumably for her participation in a 1996 class action against the USDA alleging sex-based discrimination. The USDA investigated the 1997 complaint in 1998. The affidavits of Almodovar, Gómez, and Echegoyen prepared at that time are part of the summary judgment record in this case. The investigation of that case and the subsequent appeal to the United States Equal Employment Commission (" EEOC" ) concluded in 2000; the record does not reveal the outcome.

2. 2003 Informal Grievance

In April 2003, James Rivas, a former coworker of Velazquez, became the supervisor of the Humacao office. In that role, Rivas oversaw Velazquez's work. On several occasions, he criticized Velazquez in front of her coworkers and family members, making threats and insinuations such as, " You need to justify your salary in this [o]ffice," and, " Management may decide to close [this] [o]ffice ... if the management and program's goals are not reached." Rivas also distributed work unfairly and refused to allow Velazquez to follow a flexible work schedule in order to care for her parents. The acrimony between Velazquez and Rivas came to a head on June 24, when an interaction between the two caused Velazquez to suffer physical and emotional problems requiring her to take a seven-month leave of absence and seek medical and psychological aid.

On July 7, 2003, she filed an informal grievance with her union, the American Federation of Government Employees Local 055.4 In addition to setting forth the

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events described above, Velazquez alleged that Rivas acted aggressively, impulsively, and nervously, and that she felt intimidated, harassed, confused, and anxious. She also accused him of being " violent," apparently referring to verbal, not physical, violence. She did not explicitly accuse Rivas of age- or sex-based discrimination or retaliation for previous EEO activity, but she twice referred to herself as Rivas's " female" coworker.

The record does not reveal what became of the grievance. By the time that Velazquez returned to work in January 2004, Rivas had been transferred to another office. Velazquez did not file a complaint with the USDA but she gave notice of the grievance to Jose Otero-Garcia (" Otero" ), who had taken over as State Director from Echegoyen.

3. 2003 Application and Subsequent EEO Activity

a. Application Process

Velazquez submitted another application for promotion in 2003. After two Loan Specialist openings in Humacao were announced, Velazquez applied for consideration at the GS-9 level. A panel composed of Maria de Jesus, Myrna Calero, and Pedro Gómez evaluated the applications. Because so many qualified individuals had applied, the panel determined that a round of interviews was necessary. Gómez, along with human resources manager Sylma Vargas Ibarra (" Vargas" ), conducted those interviews in January or February of 2004.5

In making their recommendation, Gómez and Vargas considered the applicants' ability in three areas: knowledge of lending practices within the USDA and the mortgage industry, leadership, and oral and written communication skills. They gave the interview " a lot of weight." Gómez and Vargas considered Velazquez one of the " best qualified candidates," who, despite a lack of experience in the mortgage industry as a whole, had demonstrable knowledge of USDA lending practices. She was able to express herself well in writing.

Despite their favorable impression of Velazquez, Gómez and Vargas decided to recommend Angel Bruno and Nancy Planas for the positions, the first at the GS-9 level and the second at GS-5. Bruno was a USDA employee who " did exceptionally well during the interview" and had better oral communication skills than Velazquez. Planas, on the other hand, had worked only with the Internal Revenue Service. Both nominees were in their early forties, while Velazquez was forty-nine. State Director Otero followed the recommendations and appointed Bruno and Planas.

b. EEO Complaint, Agency Investigation, and Appeal

After receiving notice in March 2004 that she was not selected, Velazquez filed with the USDA the EEO complaint that led to this appeal. The complaint form asked her to list the bases of alleged discrimination, to which she responded " Age, Reprisal." In her two-paragraph description

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of the " Issue(s) of Alleged Discriminat[ion]" she faced, Velazquez wrote that she was not selected for the GS-9 position " due all or in part because of my age and [r]eprisal for previously filing EEO [c]omplaint [sic]." She explained that two positions were open, one of which " was filled by a male and the other with a lady.... Both look younger than I." Velazquez also recounted her 1996 application and subsequent EEO complaint for sex-based discrimination, her participation in the class action, and her grievance alleging " mistreatment and work harassment" at the hands of Rivas.

The Employment Complaints Division of the Office of Civil Rights within the USDA sent Velazquez a letter acknowledging receipt of her complaint. The letter articulated her claim as: " Whether the agency subjected [Velazquez] to harassment based on her age (over 40) and reprisal (prior EEO activity) when she was not selected for the position of Loan Specialist...." It then informed her that if she wished to make any statement concerning the characterization of her claim, she had to do so within seven days of receiving the letter. She did not send such a statement.

With the investigation proceeding, the agency's investigator...

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