Minshew v. Donley

• Decision Date: 04 December 2012
• Docket Number: No. 2:10–CV–01593–PMP–PAL.,2:10–CV–01593–PMP–PAL.
• Citation: 911 F.Supp.2d 1043
• Parties: Mary Maureen MINSHEW, Plaintiff, v. Michael B. DONLEY, Secretary of the Air Force; United States Department of the Air Force; George Salton; Kurt Bergo; and Alpha–Omega Change Engineering, Defendants.
• Court: U.S. District Court — District of Nevada

911 F.Supp.2d 1043

Mary Maureen MINSHEW, Plaintiff,

v.Michael B. DONLEY, Secretary of the Air Force; United States Department of the Air Force; George Salton; Kurt Bergo; and Alpha–Omega Change Engineering, Defendants.

No. 2:10–CV–01593–PMP–PAL.

United States District Court,

D. Nevada.

Dec. 4, 2012.

Kelly R. Dahl, William G. Dittrick, Baird Holm LLP, Omaha, NE, Deborah L. Elsasser, Thorndal, Armstrong, Delk, Balkenbush & Eisinger, Las Vegas, NV, for Plaintiff.

Patrick A. Rose, U.S. Attorney's Office, Brian L. Bradford, Ogletree, Deakins, Nash, Smoak & Stewart, Las Vegas, NV, J. Brooke Spotswood, Spotswood LAW, Mathews, VA, for Defendants.

ORDER

PHILIP M. PRO, District Judge.

Presently before the Court is Plaintiff Mary Maureen Minshew's Motion for Partial Summary Judgment (Doc. # 114), filed on February 27, 2012. Defendant AlphaOmega Change Engineering filed an Opposition (Doc. # 136) on March 26, 2012. Defendants Kurt Bergo and George Salton filed an Opposition (Doc. # 139) on March 30, 2012. Defendants Michael B. Donley and the United States Department of the Air Force filed an Opposition (Doc. # 141) on March 31, 2012. Plaintiff filed a Reply (Doc. # 144) to Defendant Alpha–Omega Change Engineering's Opposition on April 5, 2012. Plaintiff filed a Reply (Doc. # 148) to the remaining Defendants' Oppositions on April 13, 2012.

Also before the Court is Defendant Alpha–Omega Change Engineering's Motion for Summary Judgment (Doc. # 118), filed on February 28, 2012. Plaintiff filed an Opposition (Doc. # 130) on March 22, 2012. Defendant Alpha–Omega Change Engineering filed a Reply (Doc. # 146) on April 5, 2012.

Also before the Court is Defendants Kurt Bergo and George Salton's Motion for Summary Judgment (Doc. # 138), filed on March 30, 2012. Plaintiff filed an Opposition (Doc. # 148) on April 13, 2012. Defendants Kurt Bergo and George Salton filed a Reply (Doc. # 154) on April 30, 2012.

Also before the Court is Defendants Michael B. Donley and the United States Department of the Air Force's Motion for Summary Judgment (Doc. # 140), filed on March 30, 2012. Plaintiff filed an Opposition (Doc. # 148) on April 13, 2012. Defendants Michael B. Donley and the United States Department of the Air Force filed a Reply (Doc. # 155) on April 30, 2012.

I. BACKGROUNDA. Minshew's Former Employment with the Air Force

Plaintiff Mary Maureen Minshew (“Minshew”) formerly was a civilian employee of Defendant United States Department of the Air Force, working as a contract specialist in the 99th Contracting Squadron (“99 CONS”) at Nellis Air Force Base in Nevada. (Am. Compl. (Doc. # 69) at ¶ 18; Ans. (Doc. # 71) at ¶ 18.) From 1994 to May 2007, Minshew received acceptable or fully successful performance appraisals, and she received a performance award in May 2007. (Appx. of Exs. to Pl.'s Mot. Partial Summ. J. (Doc. # 115/# 159) [“Pl.'s MPSJ”], Ex. A at 123.) In July 2007, Minshew filed an Equal Employment Opportunity (“EEO”) complaint and named Defendant George Salton (“Salton”), director of business operations at 99 CONS, as one of the individuals against whom Minshew was bringing charges. (Pl.'s MPSJ, Ex. A at 50, 123–24, Ex. B at 7–8; Appx. of Exs. to Pl.'s Opp'n to Def. Alpha–Omega Change Eng'g's Mot. Summ. J. (Doc. # 163), Ex. Z.) Around this same time, Minshew also was a witness in an EEO proceeding filed by another employee, Laureena Wirt (“Wirt”). (Pl.'s MPSJ, Ex. A at 124, 128, Ex. B at 7–8.) In August 2007, Air Force employee Daryl Hitchcock (“Hitchcock”) became Minshew's supervisor despite the fact that Wirt and Minshew had complained about Hitchcock in their respective EEO complaints. (Pl.'s MPSJ, Ex. A at 126.) In January 2008, Minshew was placed on a performance improvement plan. ( Id. at 131.) Salton was involved in the process of documenting Minshew's performance issues and the personal improvement plan, although he did not actually author the documents. ( Id. at 53–54.)

In April 2008, Minshew received a Notice of Removal advising her that the Air Force intended to remove her from her position due to unacceptable performance. (Exs. to Def. Dep't of Air Force's Mot. Summ. J. (Doc. # 142) [“AF Exs.”], Ex. A–1.) On May, 2008, the Air Force removed Minshew from her position. (Pl.'s MPSJ, Ex. A at 131–32; AF Exs., Ex. A–3.) A Notice of Personnel Action, form SF–50, was placed in her official personnel file (“OPF”), which documented her removal and identified the reason for her separation from employment with the Air Force as “unacceptable performance.” (Pl.'s MPSJ, Ex. N.)

Minshew appealed the removal decision to the Merit Systems Protection Board (“MSPB”), claiming sex and age discrimination, and sexual harassment. (Pl.'s MPSJ, Ex. R; AF Exs., Ex. B–1.) In September 2008, Minshew and the Air Force entered into a settlement agreement resolving Minshew's appeal before the MSPB. (Pl.'s MPSJ, Ex. D.) Pursuant to the settlement, Minshew would receive a cash payout of $5,000, she would withdraw all pending EEO complaints and her appeal before the MSPB, and she would not seek re-employment with the Air Force. ( Id. at ¶¶ 2, 3, 11, 13.) Additionally, Minshew would apply for discontinued service retirement (“DSR”) with the Office of Personnel Management (“OPM”). ( Id. at ¶ 12.) DSR “provides an immediate, possibly reduced, annuity for employees who are separated from federal employment against their will.” (AF Exs., Ex. E at 2–3.) A voluntary retiree would not be eligible for DSR. ( Id. at 3.) The decision whether to approve DSR lies with OPM, not the Air Force. ( Id.) Pursuant to the settlement agreement, if OPM did not approve Minshew for DSR, the agreement would be null and void and Minshew could reinstate her appeal before the MSPB. (Pl.'s MPSJ, Ex. D at ¶ 12.) The parties agreed the terms of the settlement agreement were confidential. ( Id. at ¶ 15.) If the Air Force violated the agreement, Minshew could reinstate her appeal before the MSPB. ( Id. at ¶ 18.) OPM approved Minshew for DSR. (Appx. of Exs. in Support of Pl.'s Combined Reply to Federal Defs.' Opp'n (Doc. # 149), Ex. H at 2.)

B. The CAAS III Contract

In early June 2009, the Air Force's Air Combat Command entered into a contract for advisory and assistant services, or “CAAS III,” with several contractors, including Defendant Alpha–Omega Change Engineering (“Alpha–Omega”). (Pl.'s MPSJ, Ex. G at 36; Decl. of Ronald Duncan (Doc. # 119) [“Duncan Decl.”] at 2; Decl. of Richard Sayers (Doc. # 121) [“Sayers Decl.”], Ex. A.) The CAAS III contract was for one base year, plus four optional years. (Sayers Decl. at 2.) The Acquisition Management and Integration Center (“AMIC”) is a division in Air Combat Command which managed the contract. (Pl.'s MPSJ, Ex. G at 15–16, 41.) Under the contract, the contractor was to provide administrative support to local Air Force base contracting offices by staffing contract specialists. (Pl.'s MPSJ, Ex. G at 36–37; Duncan Decl. at 2.)

CAAS III was a nonpersonal services contract, meaning that the contractor's employees were not to be treated as employees of the Air Force. (Pl.'s MPSJ, Ex. A at 134.) Rather, the employees would work for the contractor, and the Air Force could not make decisions regarding hiring, firing, or direct day-to-day supervision of the contractor's employees. (Pl.'s MPSJ, Ex. E at 23, Ex. G at 50–51.) According to Air Force personnel, it would be illegal and unethical for the Air Force to treat a nonpersonal services contract as a personal services contract. (Pl.'s MPSJ, Ex. E at 18–19, Ex. G at 49.) However, it was acceptable for the Air Force to express concern about a particular employee to the contractor so long as the Air Force did not direct or require the contractor to take any particular action with respect to that employee. (Pl.'s MPSJ, Ex. E at 25; AF Exs., Ex. F at 7, Ex. G at 6.)

Under the CAAS III contract, Alpha–Omega was awarded Task Order 68 in early June 2009, pursuant to which Alpha–Omega was to provide employees by June 22, 2009, to perform certain functions, including contract specialist work, at 99 CONS. (Pl.'s MPSJ, Ex. F at 14–15.) Task Order 68 was a one year base contract, with a one year option. (Sayers Decl. at 1–2.)

In seeking to find employees to fulfill Alpha–Omega's obligations under Task Order 68, Alpha–Omega vice president of operations, Ronald Duncan (“Duncan”), obtained the resume of Darcella Fox (“Fox”), a former civilian employee at 99 CONS. (Pl.'s MPSJ, Ex. F at 10, 18.) Duncan hired Fox with a June 22 start date, and told her that he was seeking other employees to fulfill Task Order 68. (Pl.'s MPSJ, Ex. A at 41.) Fox contacted Minshew and discussed employment opportunities with Alpha–Omega. (Pl.'s MPSJ, Ex. T at 47–48.) Minshew thereafter sent Duncan her resume. (Duncan Decl. at 2.)

Upon reviewing Minshew's resume, Duncan considered Minshew qualified for a position under Task Order 68, and he spoke to her on the telephone regarding the position. ( Id.) Duncan advised Minshew the position would be at 99 CONS. ( Id.) According to Fox and Duncan, they each advised Minshew that Task Order 68 was a base one year contract with a one year option. (Pl.'s MPSJ, Ex. F at 18–19, 72, Ex. T at 49.) Duncan specifically discussed this with Minshew who, through her prior experience as a contract specialist with the Air Force, was familiar with this type of contract. (Duncan Decl. at 2.) Duncan denies he ever discussed a particular term of employment with Minshew other than at-will employment. (Pl.'s MPSJ, Ex. F at 78.) Alpha–Omega generally does not hire employees on anything other than an at-will basis. (Sayers Decl. at 3.) According to Minshew, Duncan told her Alpha–Omega's contract with the Air Force was for five years. (Decl. of Brian Bradford (Doc. # 120) [“Bradford Decl.”], Ex. A at 172.)

Duncan advised Minshew Alpha–Omega would send her an offer letter with employment being contingent on government approval of her resume. (Pl.'s MPSJ, Ex. F at 19–20.) On June 5, 2009,...