Leskinen v. Perdue, 2:18-cv-453-TLN-KJN PS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesLAURA LESKINEN, Plaintiff, v. SONNY PERDUE, Secretary of the United States Department of Agriculture, Defendant.
Docket NumberNo. 2:18-cv-453-TLN-KJN PS,2:18-cv-453-TLN-KJN PS
Decision Date21 June 2019

SONNY PERDUE, Secretary of the United States Department of Agriculture, Defendant.

No. 2:18-cv-453-TLN-KJN PS


June 21, 2019


Plaintiff alleges claims of sexual harassment, hostile work environment, and retaliation against Defendant in connection with her tenure as an intern with the USDA in 2016. (ECR No. 1.) Presently before the Court is Defendant's motion for summary judgment. (ECF No. 40.) Plaintiff opposes (ECF No. 54), and also filed a motion objecting to the authority of magistrate judges to hear dispositive motions (ECF No. 56), a motion requesting further discovery (ECF No. 55), and five motions to strike the affidavits of Defendant's supporting witnesses (ECF Nos. 58, 59, 60, 61, and 62).1

After carefully considering the written briefing, the record, and the applicable law, the Court DENIES Plaintiff's ancillary motions, and recommends that Defendant's motion for summary judgment be GRANTED.

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In March of 2016, Plaintiff (a student at American River College) applied for a Pathways Internship with the National Agricultural Statistics Service ("NASS"), an agency within the United States Department of Agriculture. Prior to starting, Plaintiff emailed USDA H.R. Specialist Rhonda Gray to request starting her internship at a GS-7 level, due to prior federal employment. Gray submitted Plaintiff's question to Kevin Barnes, Director of Western Field Operations for NASS. Barnes replied: "Since this is a student internship and not a permanent position, I prefer to maintain the offer at GS-5 step 1. Upon successfully performing in her intern position and completing the required 640 hours, she will be eligible for the GS-7 step 1." Plaintiff signed an internship agreement that stated she would be eligible for conversion to a career position after completing a minimum of 640 hours of work in the internship program under a 2 year appointment, and that "eligibility for conversion does not guarantee the agency will decide to opt for conversion." The internship agreement also required Plaintiff to maintain a "half-time course load (2 classes) as defined by the educational institution." American River College defines "half-time" as between 6-11 credits. Plaintiff started her internship on May 18, 2016.

Shortly thereafter, Plaintiff's supervisor Curt Stock told her he wanted to "help" her with her promotion. Stock said the previous intern quit because she didn't want his help. Stock once blocked her from leaving her desk and mentioned again how he could "help" her, and when Plaintiff told Stock that what he was asking was against the rules, Stock replied "hang the rules;" Plaintiff then asked Stock in a loud voice if she could leave, and Stock acquiesced. Later, during Plaintiff's harassment-prevention training, Stock stated "that's not how the real world worked." In July of 2016, after Stock again mentioned "helping" her, Plaintiff stated her belief that all she needed to do was complete 640 hours of work to receive a promotion. Plaintiff did not report any of this conduct to the officer manager, Chris Messer, or any other of Stock's supervisors.

In October of 2016, Stock conducted Plaintiff's performance review, gave her the highest

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rating (10), and rated her "fully successful" in each of the categories. Plaintiff asked Stock whether this rating was sufficient for promotion, and he replied it was. Stock told her she had reached her 640 hours, and Plaintiff asked about the promotion she believed she was entitled to (allegedly per Barnes). Stock asked her for a hug at this meeting, and that a co-worker once yelled "Bend Over!" when she left Stock's office. Stock then followed up with Angie Hill, H.R Management Analyst in D.C., about the alleged pre-employment agreement. Hill told Stock that Plaintiff was promotion eligible "after a year of time-in-grade as a student." Stock forwarded the email to Messer, who told Plaintiff the GS-7 promotion could be revisited in March of 2017.

In early November, Plaintiff wrote Gray to inquire whether she could drop a class and still remain eligible for the internship. Gray errantly responded that Plaintiff needed to maintain "part-time" status, and suggested Plaintiff contact her institution "to find out if dropping one of your classes would make you less than part-time." Plaintiff then told Gray her school informed her that 1-5 credits was "part-time"; Plaintiff provided Gray with a verification form, which Gray filed in Plaintiff's personnel file. Gray told Plaintiff "everything was ok" with her college enrollment, so Plaintiff dropped a class—leaving her registered as "part-time" but less than "half-time." On November 15, Lor'rie White, Senior Budget and Accounting Tech in Plaintiff's office, informed Messer that it appeared Plaintiff was only enrolled in one class; Messer confirmed this fact with Plaintiff on December 8. When Plaintiff was leaving for the day on the 8th, a co-worker "pointed his backside up in the air" at her. Plaintiff called in sick on Friday, December 9.

On December 12, 2016, Plaintiff left a copy of "Memo of Understanding and Other Issues/Invocation of the No Fear Act" on Messer's desk alleging hostile and sexually-harassing actions by Stock. The following day, Messer (in the presence of Stock and White) terminated Plaintiff from the internship. Messer informed Plaintiff she was being let go because she was registered as less than half-time, in derogation of her employment agreement and federal statutes.





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After participating in the EEO process, Plaintiff filed the instant complaint, alleging Title VII harassment and retaliation. (ECF No. 1.) Defendant now moves for summary judgment under Rule 563, and Plaintiff opposes. (ECF Nos. 40, 56.)


I. Plaintiff's Seven Ancillary Motions

Prior to reaching the merits of Defendant's summary judgment motion, the Court takes up Plaintiff's objections and miscellaneous motions. This includes: (A) her contention that the Magistrate Judge lacks authority to issue findings and recommendations on motions for summary judgment in pro se cases (ECF No. 56); (B) her request for further discovery in order to support her opposition to Defendant's summary judgment motion (ECF No. 55); and (C) her motions to strike five declarations relied upon by Defendant (ECF Nos. 58, 59, 60, 61, and 62).

A. Magistrate judges have authority to issue findings and recommendations on dispositive motions, including summary judgment motions.

Legal Standard

Title 28 U.S.C. § 636 governs the jurisdiction, powers, and temporary assignment authority of Magistrate Judges. The statutes provides:

(A) a [district] judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action . . .;
(B) a [district] judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A) . . . .

28 U.S.C. § 636(b)(1)(A-B). Rule 72 of the Federal Rules of Civil Procedure, regarding findings and recommendations on dispositive motions, states that "[a] magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial

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matter dispositive of a claim or defense . . .," and that "[t]he magistrate judge must enter a recommended disposition, including, if appropriate, proposed findings of fact." Rule 72(b)(1) Local Rule 302 for the Eastern District of California states that in Sacramento, the Magistrate Judge is to oversee "all actions in which all the plaintiffs or defendants are proceeding in propria persona, including dispositive and non-dispositive motions and matters." L.R. 302(c)(21).


Plaintiff acknowledges that the undersigned has authority to hear Defendant's motion for summary judgment under the local rules, but asserts the local rule runs afoul of 28 U.S.C. § 636 and her right to equal protection under the Fourteenth Amendment to the U.S. Constitution.

Plaintiff is correct that 28 U.S.C. § 636 does not provide authority for magistrate judges to resolve dispositive motions, including motions for summary judgment. 28 U.S.C. § 636(b)(1)(A). However, in so arguing, Plaintiff conveniently omits reference to section B, which provides explicit authority for a magistrate judge to conduct summary judgment proceedings and submit proposed findings of fact and recommendations to a district judge. See § 636(b)(1)(B); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (en banc) (reminding that "certain matters (for example, non-dispositive pretrial matters) may be referred to a magistrate judge for decision, while certain other matters (such as case-dispositive motions [and] petitions for writs of habeas corpus) may be referred only for evidentiary hearing, proposed findings, and recommendations.") (emphasis added). Local Rule 302(c)(21) derives from § 636, and the Ninth Circuit has upheld this allocation of judicial resources in numerous instances. See Houghton v. Osborne, 834 F.2d 745, 748 (9th Cir. 1987) ("[28 U.S.C. § 636(b)(1)(B)] authorizes a magistrate to submit to the district court proposed findings of fact and recommendations for the disposition of . . . a motion for summary judgment."); see also Flam v. Flam, 788 F.3d 1043, 1047 (9th Cir. 2015)...

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