Guerrero v. Vilsack

• Citation: 134 F.Supp.3d 411
• Decision Date: 30 September 2015
• Docket Number: Civil Action No. 14–2107 (RMC)
• Parties: Sinceri Guerrero, Plaintiff, v. Thomas Vilsack, Secretary, United States Department of Agriculture, Defendant.
• Court: U.S. District Court — District of Columbia

134 F.Supp.3d 411

Sinceri Guerrero, Plaintiff,

v.Thomas Vilsack, Secretary, United States Department of Agriculture, Defendant.

Civil Action No. 14–2107 (RMC)

United States District Court, District of Columbia.

Signed September 30, 2015

Sinceri Guerrero, Raleigh, NC, pro se.

Sinceri Keoka Guerrero, Raleigh, NC, for Plaintiff. Damon William Taaffe, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER

, United States District Judge

Sinceri Guerrero has worked for the U.S. Department of Agriculture since December 2010. Proceeding pro se, she sues the Secretary of the Agriculture, Tom Vilsack, in his official capacity. Ms. Guerrero alleges that she has suffered continuous harassment, intentional discrimination, and retaliation due to her age (52) and race (Hispanic/African American) and that she has been underpaid due to such discrimination. The Secretary moves to dismiss her case in part, arguing that Ms. Guerrero has failed to exhaust some of her claims at USDA before taking them to court. As to others, the Secretary argues that they were not timely brought or do not state a claim for relief that is plausible.

The Court agrees that some of Ms. Guerrero's claims are untimely, but also questions whether USDA fulfilled its obligations to investigate adequately Ms. Guerrero's charges of discrimination—perhaps because she accused the Office of Civil Rights, which is the office that investigates such complaints. And contrary to the Secretary's position, several of Ms. Guerrero's allegations state a plausible claim for relief. Because most of the allegations in the Amended Complaint warrant discovery, the Secretary's motion will be granted only in part.

I. FACTS

All facts alleged in Ms. Guerrero's Amended Complaint, Dkt. 2 (Am. Compl.) are taken as true in this procedural posture. Baird v. Gotbaum, 792 F.3d 166, 169 n. 2 (D.C.Cir.2015)

(citing Brown v. Sessoms, 774 F.3d 1016, 1020 (D.C.Cir.2014) ). A pro se complaint is "to be liberally construed" and "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) ).¹

The Court may also review materials referenced in the Complaint, "particularly where, as here, the plaintiff has presented the document to the Court in support of its claims." Am. Council of Life Insurers v. D.C. Health Benefit Exch. Auth., 73 F.Supp.3d 65, 104 n. 21 (D.D.C.2014)

(citing Abhe & Svoboda, Inc. v. Chao, 508 F.3d 1052, 1059 (D.C.Cir.2007) ); see also Vanover v. Hantman, 77 F.Supp.2d 91, 98 (D.D.C.1999) (concluding that a court could properly consider, on motion to dismiss, "various letters and materials produced in the course of plaintiff's discharge proceedings" that were "referred to in the complaint and [were] central to plaintiff's claims") aff'd, 38 Fed.Appx. 4 (D.C.Cir.2002).

A. Ms. Guerrero's Initial Federal Employment

Sinceri Guerrero's federal employment began in December 2010, when she was hired under the Business Management Leadership Program into the USDA's Food Safety and Inspection Service (FSIS). Her series and grade were Management Analyst 0343 and AP–3, respectively. AP–3 was equivalent to a GS–11, Step 5 pay grade. The leadership program was part of a broader Federal Career Internship Program (FCIP), under which successful participants would be converted—after a two-year trial period and a third year of service—into Management Analysts at the AP–4 pay grade.

That was not to be, however, as the FCIP was abolished by Executive Order effective March 1, 2011. See Exec. Order No. 13,562 (Dec. 27, 2010)

. The Office of Personnel Management directed agencies on how to handle their FCIP interns: "[A]ll agencies with FCIP incumbents must convert them to career-conditional or career positions in the competitive service." OPM, Executive Order 13562 —Recruiting and Hiring Students and Recent Graduates (Jan. 5, 2011). More specifically, OPM directed that "[i]ncumbents who have completed less than one year of continuous Federal Service as of March 1, 2011 will continue to be in a probationary period, even after their conversion to competitive service, until they reach the one year service mark...." Id. Ms. Guerrero completed her one year of probationary service in December 2011 and received a Standard Form (SF) 50 on January 29, 2012, reflecting her new status as a regular competitive employee and a Management Analyst 0343, AP–4.

Ms. Guerrero spent most of her probationary year assigned to the FSIS's Office of Civil Rights.² Ms. Guerrero claims to have suffered most of her discrimination at the hands of that office.

B. The Alleged Discrimination

The alleged discrimination began in January 2011, when Ms. Guerrero informed her Training Officer, Carmen Rottenberg, that the FCIP had been abolished and that Ms. Guerrero was therefore a probationary employee. Ms. Rottenberg replied that she did not know Ms. Guerrero's status and would continue to treat her as an intern. As indicated below, references to Ms. Guerrero as an intern, rather than a regular employee, continued to plague her FSIS career.

Farook Sait became the Director of the Office of Civil Rights in March 2011 and promoted Ms. Rottenberg to serve as his Deputy Director. The Complaint alleges that "Mr. Sait was a known civil rights violator [and] subject to a settlement agreement that prevented him from supervising minority women." Am. Compl. ¶ 13. Ms. Guerrero complained about Mr. Sait's appointment and asked to speak to FSIS Administrator Alfred Almanza. She was told that any communication with Director Almanza would have to go through Ms. Rottenberg.

Sometime in 2011, Ms. Guerrero suggested to Ms. Rottenberg that it was "excessively expensive" to spend $500,000 on a Civil Rights Training seminar at the Ritz Carlton in Crystal City, VA. This suggestion was unwelcome to Ms. Rottenberg, who "removed Plaintiff's work assignments and gave them to Amanda Krot, a younger white employee with less formal education" than Ms. Guerrero but who was also a Management Analyst 0343 AP–4. Id. ¶ 14. At other, unspecified times in 2011, Mr. Sait and Ms. Rottenberg spoke openly of Ms. Guerrero as "merely an old intern" and required her to take inventory of a filthy storage room in Beltsville, MD. Id. ¶ 15. Ms. Guerrero complained about all of this to her second-line supervisor, Peter Bridgeman, who told her that "she would be well served if she remained silent about her poor treatment." Id. ¶ 16.

In June 2011, Ms. Guerrero left the Office of Civil Rights to work in the FSIS Office of Management. She left that job in October 2011 to work in the FSIS Workers Compensation, Safety and Health Division.

In January 2012, Ms. Guerrero was asked to work on the Administrative Solutions Project Blueprint for Stronger Service, located in the Office of the Secretary of Agriculture. She was still classified as a Management Analyst 0343 AP–4 but worked alongside (and filled the same roles as) younger, white coworkers who were paid at a higher grade. When Ms. Guerrero asked for a commensurate increase to a GS–13 or GS–14 pay grade, she was "told that she was an intern and ineligible." Am. Compl. ¶ 17. She alleges further that Ms. Rottenberg conspired with others to keep Ms. Guerrero from obtaining a permanent position in the Secretary's Office, and that she was made to sign a form never used for comparable employees, on which Ms. Guerrero had to predict what she would learn on the assignment.

In November 2012, Ms. Guerrero was reassigned by Mses. Rottenberg and Myers to FSIS's Labor and Employee Relations Division (LERD).³ Despite Ms. Geurrero's best efforts to remain where she was, she was told that she was needed in LERD. Ms. Guerrero alleges that that LERD was "a low performing unit with high turnover and a history of employee dissatisfaction, including workplace violence."

Id. ¶ 18. During her first few months in the unit, seven supervisors and other staff left. She also alleges procedural defects in her reassignment, viz. that she never received a "letter of notification" or "a meeting with Human Resources explaining rights and resources." Id. No adjustment to her pay was made. When she arrived, moreover, "no one knew what her responsibilities were nor did anyone provide her with a job description." Id. ¶ 19.⁴ After much confusion, she was informed that she would perform labor-relations work as a GS–13.

Ms. Guerrero alleges that she then suffered harassment and discrimination throughout 2013: she was (1) not placed on the "Agency call list" to be informed of necessary information; (2) denied free OPM training for her new position; (3) questioned why she needed to take time off to vote; (4) questioned why she needed sick leave to obtain a requested doctor's note; and (5) not given access to necessary office equipment such as a copier, scanner, and shared drives. These circumstances imposed great stress and caused Ms. Guerrero "anxiety and severe crying episodes." Id.

C. Applications to Become a Litigation Specialist

In June 2014, Ms. Guerrero applied for a Litigation Specialist position at a GS–14 grade. She was not referred as a qualified candidate, however, because she did not have a signed evaluation due to the fact that she had no assigned supervisor to complete an evaluation for fiscal year 2013. Ms. Guerrero wrote to the Deputy Administrator in August 2014 to complain, and was then granted an interview, but the job went to someone already considered in the normal course. Two subsequent applications for GS–14 Litigation Specialist positions were also unsuccessful.

When she applied yet again to become a GS–14 Litigation Specialist, Ms. Guerrero was notified sometime after October 5, 2014 that she would have to submit a writing sample with her application. She immediately withdrew her application, in the...