Horschel v. Haaland

• Decision Date: 26 May 2022
• Docket Number: 4:18-cv-0006-HRH,4:19-cv-0022-HRH
• Parties: ESTHER HORSCHEL, Plaintiff, v. DEB HAALAND, Secretary of the Department of Interior, Defendant. ESTHER HORSCHEL, Plaintiff, v. DEB HAALAND, Secretary of the Department of Interior, Defendant.
• Court: U.S. District Court — District of Alaska

ESTHER HORSCHEL, Plaintiff, v. DEB HAALAND, Secretary of the Department of Interior, Defendant.

ESTHER HORSCHEL, Plaintiff, v. DEB HAALAND, Secretary of the Department of Interior, Defendant.

Nos. 4:18-cv-0006-HRH, 4:19-cv-0022-HRH

United States District Court, D. Alaska

May 26, 2022

ORDER

H Russel Holland, United States District Judge.

Defendant's Motion for Summary Judgment on Plaintiff's Non-selection Claims

Defendant Deb Haaland, Secretary of the Interior, moves for summary judgment on plaintiff's 2010, 2011, and 2012 non-selection claims.^[1] This motion is opposed by plaintiff Esther Horschel.^[2] Oral argument was requested and has been heard.

I. Facts

In 2010, plaintiff was employed by the Bureau of Land Management/Alaska Fire Service (AFS) as a seasonal fire dispatcher, which meant that she worked from early spring through early fall, after which she would be on furlough until the next fire season. Plaintiff had a classification of GS-7. Plaintiff's duty station was in Galena, Alaska.

In 2010, plaintiff applied for a full-year, non-seasonal position as a Fire Coordination Officer, which was a supervisory position. This position had a promotion potential to GS-10. Marlene Eno-Hendren was “the selecting official.”^[3] Eno-Hendren averred that “[t]here were two individuals on the Best Qualified list - Hilary Shook and Ms. Horschel” and that she “did not conduct interviews because [she] had worked with both of them.”^[4] Eno-Hendren averred that she “selected Ms. Shook” for the position because Shook “had previous supervisory experience, and Ms Horschel did not.”^[5] This supervisory experience consisted of Shook being the program coordinator of a small food bank where she supervised one full-time employee, two student interns, and 150 volunteers.^[6] Plaintiff, however, contends that she was better qualified for the Fire Coordination Officer position because she met the 90-day on-the-line wildfire experience requirement, had several seasons of fire experience, and had assumed the duties of the position in the spring of 2010. Plaintiff contends that Shook did not meet the 90-day on-the-line wildfire experience requirement and that the records that have been produced in discovery show that Shook did not have any experience prior to 2007 that would qualify for the 90-day on-the-line wildfire experience requirement.^[7]

Plaintiff avers that when she asked Eno-Hendren why she was not selected for the position, Eno-Hendren “told me that I was not hired for the position because I ‘have not come out of [my] shell' and that while I was ‘technically proficient' that I was ‘missing the rest' and that I was a ‘head down type' not the ‘supervisor type.'”^[8] Plaintiff also avers that Eno-Hendren told her that “I could not be hired for th[e] position because I was doing GS-9/11 level Geographic Information Specialist (GIS) work in Galena. Ms. Eno-Hendren stated that ‘it would hurt the Agency to promote you because then you wouldn't be able to do the GIS work' and that she would have to hire someone else to do its GIS work for the Galena Zone.”^[9] Plaintiff also avers that when she questioned Eno-Hendren about the quality of Shook's work, Eno-Hendren said that “Shook did not need to get her work correct as the Fire Coordination Officer, because she would . . . only be a supervisor.”^[10] Plaintiff further avers that when she questioned Eno-Hendren about the 90-day requirement, Eno-Hendren told her “that HR had qualified Ms. Shook for the position.”^[11]

In August 2010, plaintiff applied for a Geographic Information Systems (GIS) Specialist position, which was a full-year, non-seasonal GS 7/9/11 position. There had been two prior recruitments for the GIS specialist position, one in October 2008 as a GS-11 and one in January 2010 as a GS 9/11. Neither of these recruitments was successful.

The GIS position required either a bachelor's degree in a related discipline or “a combination of education and experience[.]”^[12] Plaintiff did not have a bachelor's degree but she contends that she “had done extensive GIS work for the BLM AFS....”^[13] In a 2007 performance evaluation, it was noted that plaintiff “had worked with the AFS GIS office throughout the season to gain better knowledge of the GIS programs used.”^[14] And, in her 2008 performance evaluation, it was noted that plaintiff had provided “maps to Interagency partners using her GIS skills.”^[15] In addition, in 2008, plaintiff did a 20-day assignment as a GIS specialist trainee working on the “Iron Complex” fire and it was noted that plaintiff did “an excellent job”^[16] on the assignment and that she had “the skills and personality to be an awesome GISS.”^[17] Plaintiff also did a 16-day assignment as a GIS specialist trainee working on the “Siskiyou Complex and Blue” fires and it was noted that plaintiff “performed very well in providing GIS products”^[18] and that she “exceeded expectations for the position.”^[19] On plaintiff's 2009 performance evaluation, it was noted that plaintiff “worked with the other dispatchers in the Galena zone showing them how to utilize GIS ”^[20] Also in 2009, plaintiff did two temporary assignments as a GIS Specialist on fires in Alaska and was commended for her work on both assignments.^[21]

Beverly Fronterhouse was the selecting official for the GIS position.^[22] Plaintiff was one of three candidates “on the Certificate of Referrals” that Fronterhouse “received from Human Resources.”^[23] Plaintiff was rated qualified at both the GS 9 level and the GS 7 level.^[24] Fronterhouse selected Daniel Griggs for the position. Fronterhouse averred that she “based [her] decision on the interview results” from the second recruitment, “work experience in the GIS field[, ] and education.”^[25] Plaintiff had been interviewed during the second recruitment; Griggs had not been. Fronterhouse explained that

Griggs had worked for AFS on a detail in our GIS group, was a cartographic technician at the Alaska State Office dealing with maps and geography, which required similar skill sets[, ] and served an internship as a GIS Specialist with the National Parks Service. Mr. Griggs also had [a] Master's degree in Geography, graduating with a 3.38 GPA.^[26]

Griggs was rated qualified at the GS-7 level.^[27] Prior to hiring Griggs for the GIS position, Fronterhouse had attempted to do a lateral transfer of Griggs into the position.^[28] Fronterhouse had also selected Griggs to do a 30-day detail to the GIS position in April 2010.^[29] Plaintiff had offered to do a detail to the GIS position around that same time but Fronterhouse never took plaintiff up on her offer.

Hilary Rigby, one of the members of the interview panel for the second recruitment for the GIS position, testified that she “was impressed with” plaintiff's “interview” and that plaintiff had “nailed” her interview.^[30] Rigby also testified that “[b]ased on his performance during the detail, ” she did not think Griggs should have been selected for the GIS position.^[31]And, Rigby testified that after Griggs was hired, he required extensive one-on-one training in GIS functions, training that Rigby believed plaintiff would not have required.^[32] Rigby testified that Fronterhouse told her that she did not hire plaintiff for the GIS position because she did not think plaintiff would be a good “fit” for the group dynamic.^[33] Rigby raised concerns to her superiors about the fairness of the hiring of the GIS position both prior to the selection of Griggs and after his selection.

In August 2010, plaintiff contacted a BLM EEO Officer regarding her non-selection for the Fire Coordinator and GIS Specialist positions. In addition, plaintiff “filed two appeals with the MSPB regarding the . . . hiring for the Fire Coordinator and GIS positions on January 12, 2011.”^[34] These appeals were dismissed for lack of jurisdiction on March 25, 2011.^[35] In January 2011, plaintiff began informal EEO counseling, ^[36] and on May 2, 2011, plaintiff filed a formal EEOC complaint, alleging that she had been discriminated against due to her race, color, sex, national origin, and physical and mental disability and in reprisal for her prior protected activity.^[37]

In the spring of 2011, plaintiff applied for a 120-day temporary detail for an Intelligence Officer position. Plaintiff was not selected for this detail. David Curry was the selecting official.^[38] Cheryl Van Der Horn was selected for the detail because Curry “considered her the best qualified and the best fit for our office.”^[39] Curry explained that both Van Der Horn and plaintiff were qualified for the detail but “having interacted with both candidates on numerous occasions over a period of at least 2 years, I felt Ms. [Van Der Horn] displayed stronger communication skills, which is an important factor for work in this field.”^[40] Plaintiff, however, points out that Van Der Horn had been reduced in grade from GS-8 to GS-5 in 2009.^[41] Plaintiff also points out that Van Der Horn was given a temporary promotion to GS-9 during her detail, ^[42] even though when plaintiff received a similar detail in 2012, she was only paid at a GS-7 rate.

In October 2011, plaintiff applied for two vacant Legal Instrument Examiner (LIE) positions, which were year-round non-seasonal positions. Plaintiff was not interviewed for either position. Jenekia Ross was the selecting official for these positions.^[43] One of the LIE positions was advertised and hired under a Delegated Examining Authority (DEU) process and the other position was advertised and hired under the Merit System process.^[44] Plaintiff was rated qualified for both positions but was only referred as an eligible candidate for the Merit System position because referrals for the DEU position were limited to qualified...