Paluso v. Perdue

• Decision Date: 11 June 2019
• Docket Number: CIVIL ACTION NO. 5:17-CV-00169-TBR
• Parties: KEVAN PALUSO PLAINTIFF v. SONNY PERDUE, SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE. DEFENDANT
• Court: U.S. District Court — Western District of Kentucky

KEVAN PALUSO PLAINTIFF v. SONNY PERDUE,SECRETARY UNITED STATES DEPARTMENT OF AGRICULTURE. DEFENDANT

CIVIL ACTION NO. 5:17-CV-00169-TBR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY AT PADUCAH

June 11, 2019

MEMORANDUM OPINION

This matter comes before the Court upon a Motion to Dismiss filed by Defendant and Secretary for the United States Department of Agriculture, Sonny Perdue. (R. 27). Plaintiff, Kevan Paluso, has responded. (R. 29). The matter is now ripe for adjudication. For the reasons that follow, the Defendant's Motion to Dismiss, (R. 27), is HEREBY GRANTED.

BACKGROUND

This case arises from Kevan Paluso's allegations that he was unlawfully retaliated against, discriminated against, harassed, and ultimately terminated by his superiors at the United States Forestry Department based on his age and prior Equal Employment Opportunity (EEO) activity. (R.1). This case's procedural history and background is, to say the least, tangled. To straighten it out, as best it can, the Court will start from the relevant time-line's beginning and proceed to its end in chronological fashion, stopping periodically to summarize things along the way.

Plaintiff, Kevan Paluso, was born in February 17, 1960. (R. 29). He began working for the Federal Government in 2001. (Id.). In 2009, Paluso became Area Transportation Program Manager with the United States Forest Service at Golden Pond, Kentucky. (Id.). He was in charge of overseeing private and state road contractors. (Id.). His first line supervisor was Jeff Laird, and his Second Line Supervisor was Tina Tilly. (Id.).

On March 11, 2016, Paluso filed EEO complaint FS-2016-00191. (R. 27, Ex. 1). In that Complaint, Paluso alleged that he was subjected to discrimination and non-sexual harassment based on his age and reprisal for prior EEO activity. (Id.). Paluso made the following specific allegations:

1. on November 17, 2015, his supervisor rescinded his designation as a Contracting Officer's Representative; and

2. on several dates, he was subjected to various acts of harassment, including but not limited to:

a. in October and November 2015, he was "stalked" in the office parking lot;

b. from October 2015 to December 2015, his co-workers repeatedly displayed the hand gesture "L" (for "loser") towards him;

c. on an unspecified date, several FS colleagues conspired to give him a tainted sandwich; and

d. on unspecified dates, management ignored his concerns about harassment and directly and indirectly demeaned, antagonized, bullied, and subjected him to hostile treatment.

(Id.).

On October 31, 2016, Paluso filed EEO complaint FS-2016-00817. In FS-2016-00817, Paluso again complained of harassment, discrimination, and reprisal based on his age and prior EEO activity. (R. 27, Ex. 3). Neither Party has provided the Court with documentation related to complaint FS-2016-00817 so as to allow the Court to recount the exact allegations brought by Paluso therein. However, as will become clear below, complaint FS-2016-00817 is, in large part, duplicated by Paluso's next EEO complaint.

On July 25, 2017, Paluso filed EEO complaint FS-2017-00557. (Id.). Like his previous two, complaint FS-2017-00557 complains of harassment, discrimination, and reprisal based on Paluso's age and prior EEO activity. (Id.). Paluso makes the following specific allegations in complaint FS-2017-00557:

1. in the summer of 2016, Paluso was issued a Notice of Proposed suspension;

2. from the summer of 2016, until October 11, 2016, management required that he work off-site, however failed to provide him supervision, guidance, a duty location and telework site (including office furniture, internet access and office supplies) to perform his duties as such;

3. on several dates, he was subjected to various incidents of harassment including but not limited to:

a. in the Summer of 2016, management repeatedly required him to provide a medical statement to ensure he was not a threat and subsequently abandon it without explanation;

b. on unspecified dates, management officials demeaned, abused, traumatized, antagonized and treated him differently;

c. on an unspecified date, he was required by management to drive his personal vehicle to attend a working meeting;

d. on an unspecified date, management provided him an unsafe government vehicle to attend an off-site meeting;

e. on an unspecified date, management failed to investigate his repeated complaints against a co-worker; and

f. on an unspecified date, management refused to inform him of how an alleged poor performance matter could be rectified.

(R. 1-1).

So, by July 25, 2017, Paluso had three separate EEO complaints pending—FS-2016-00191, FS-2016-00817, and FS-2017-00557. All three complaints stem from alleged harassment, discrimination, and reprisal based on Paluso's age and prior EEO activity.

On August 2, 2017, The United States Department of Agriculture dismissed Paluso's third EEO complaint, FS-2017-00557. (R. 1-1). Complaint FS-2017-00557 Claims 1, 2, and 3(a)-(e) were dismissed for two primary reasons: First, those claims were untimely because Paluso waited approximately ten months to contact an EEO counselor concerning the alleged conduct, and second, those claims duplicated the claims alleged in Complaint FS-2016-00817, Paluso's second EEO claim. (Id.). EEO Complaint FS-2017-00557's only remaining claim, Claim 3(f), was singled out and dismissed for failure to state an adverse employment action. (Id.).

On November 3, 2017, Paluso, through counsel, Ms. Pamela Bratcher, filed a Complaint with this Court. (R. 1). His Complaint states that Paluso "filed to assert claims that were denied by the issuance of a Final Agency Decision dated August 2, 2017, [the Final Agency Decision dismissing EEO complaint FS-2016-00557]." (Id.). Under the title "Jurisdiction and Venue," the Complaint states only the following: "Jurisdiction and venue in this district is proper as the Plaintiff lives and resides in this district. The Court has pendent jurisdiction over Plaintiff's state law claims. (Id.). The employment practices herein and after alleged to be unlawful were committed in the Western District of Kentucky." (Id.). The Complaint relates the same factual allegations as those found in the EEO complaint FS-2017-00557. (Id.; R. 1-1). In addition to those factual allegations, the Complaint also alleges that "in the fall of 2017 management emailed to Plaintiff's family members a negative performance review that violated Plaintiff's right to privacy and caused the Plaintiff emotional distress and humiliation." (R. 1).

The Complaint lists five Counts against the Defendant: Count I. Violation of the Age Discrimination and Employment Act of 1967, Count II. Hostile Working Environment and Retaliation Based Upon Filing of Previous EEO Complaints; Independent Claim of Hostile Work Environment, Count III. Constructive Discharge, Count IV. Invasion of Privacy, and Count V. Intentional Infliction of Emotional Distress. (Id.). Paluso prays for the following relief: (1) compensatory damages for mental and emotional injuries, humiliation, and ridicule, and past and future lost wages in the amount of $600,000, (2) punitive damages in the amount of $400,000, (3) trial by jury, and (4) attorney's fees and court costs. (Id.).

On January 26, 2018, after Paluso had filed suit, the United States Department of Agriculture removed Paluso from service. (R. 8-2). On March 14, 2018, Paluso appealed his removal from service to the United States Merit System Protection Board (MSPB). (Id.). On April 11, 2018, the MSPB dismissed Paluso's appeal as untimely because it was sixteen-days late. (Id.).

On April 10, 2018, the Unites States Department of Agriculture dismissed EEO complaint FS-2016-00191, Paluso's first EEO Complaint, because Paluso raised the same issues in the instant litigation as were alleged therein. (R. 27, Ex. 2). An Administrative Law Judge construed Paluso's filling the instant federal suit as a voluntary dismissal of complaint FS-2016-00191. (Id.).

On June 15, 2018, the Court in response to Paluso's motion for default judgment, issued a Memorandum Opinion & Order alerting Paluso that he had not effectuated service. (R. 7).

On June 20, 2018, Paluso amended his Complaint to appeal from the Final Order of the United States Department of Agriculture dismissing EEO Complaint FS-2016-00191, and to appeal from the MSPB's decision to dismiss Paluso's appeal concerning his removal from service. (R. 8).

To summarize, at this point, Paluso has filed a Complaint with this Court asserting, among others, those claims dismissed by the Department of Agriculture in EEO Complaint FS-2016-00557. Paluso has amended that Complaint to appeal the Merit System Protection Board's dismissal of his appeal regarding his termination, and the Department of Agriculture's dismissal of EEO Complaint FS-2016-00191. At this point, EEO Complaint FS-2017-817 remains pending in the administrative process. Finally, despite instruction from the Court, Paluso has, to this point, yet to effectuate proper service upon the Defendant.

On September 20, 2018, in response to Paluso's second motion for default judgment, the Court again notified Paluso that he had still not effectuated service upon the Defendant. (R. 20).

On October 11, 2018, the Department of Agriculture dismissed EEO Complaint FS-2016-00817. (R. 27, Ex. 3). Paluso's time within which to appeal the Department of Agriculture's dismissal of Complaint FS-2016-00817 to this Court expired on January 9, 2019. Five days later, On January 14, 2019, Paluso filed a Notice of Appeal with this Court concerning FS-2016-00817's dismissal. (R. 20).

On January 28, 2019, over a year after filling the instant Complaint, Paluso finally effectuated service upon the Defendant, and on March, 14, 2019, the Defendant filed the instant Motion to Dismiss. (R. 26; R. 27).

STANDARD

Although the Defendant only alludes to Federal Rule of Civil Procedure 12(b)(6) in moving for dismissal, he has moved to dismiss...