Pedicini v. U.S., Civil Action No. 04-12395-JLT.
| Decision Date | 29 March 2007 |
| Docket Number | Civil Action No. 04-12395-JLT. |
| Citation | 480 F.Supp.2d 438 |
| Parties | John G. PEDICINI, Plaintiff, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
John G. Pedicini, Saugus, MA, pro se.
Barbara Healy Smith, United States Attorney's Office, Boston, MA, for Defendants.
John G. Pedicini (the "Plaintiff'), brings this action against Defendants, the United States of America, Ann M. Veneman, Secretary of the United States Department of Agriculture and Linda Springer, Director of the United States Office of Personnel Management ("OPM"), for:
(1) Title VII retaliation;
(2) Claims under the Administrative Procedure Act ("APA") involving (a) the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 ("the No FEAR Act"), and (b) noncompliance with a Final Agency Order;
(3) Violation of Due Process under the 5th Amendment; and
(4) Breach of settlement agreement.
Defendants move for summary judgment on all counts. For the reasons set forth below, Defendants' Motion for Summary Judgment [# 59] is ALLOWED IN PART AND DENIED IN PART.
Plaintiff has filed a Cross Motion for Summary Judgment [# 54] on all counts. As explained below, that motion is DENIED.
Plaintiff is employed in the Financial Management Division, Northeast Regional Office ("NERO") of the United States Department of Agriculture, Food and Nutrition Service ("USDA-FNS"), located in Boston, Massachusetts. Since August 1, 1997, Plaintiffs official title has been "Financial Management Specialist."2 His current salary level is Grade 11, Step 6 ("GS-11").
Plaintiff maintains that in addition to his official title, he also has a number of working titles, including "FPA backup funds officer," "backup funds officer," "alternate funds officer," and "alternate funds control officer."3 This is disputed by Defendants.
In 1999, Plaintiffs coworker, Antoinette Belleza ("Belleza"), filed an Equal Employment Opportunity ("EEO") complaint against the USDA, alleging age and gender discrimination. Belleza identified Plaintiff as a witness to her claims. Plaintiff asserts that his extensive testimony to the EEO investigator bolstered Belleza's case.
On November 17, 2000, Plaintiff filed his own EEO Complaint against the USDA, claiming retaliation for his support of Belleza's complaint. Plaintiff alleged that after Belleza filed her complaint naming Plaintiff as her witness, Plaintiffs second-line supervisor Douglas MacAllister ("MacAllister") removed Plaintiff as an Alternate Dispute Resolution ("ADR") Mediator, denied him a promotion opportunity, and refused to send Plaintiff to two separate training sessions.
On September 13, 2001, Plaintiff filed a civil action in the United States District Court, District of Massachusetts, alleging that the USDA retaliated against him for his involvement in supporting Belleza's complaint. On June 17, 2002, Plaintiff resolved his civil action against the USDA through mediation. Both parties signed a settlement agreement ("the Agreement") which "neither determines nor implies a finding of or admission that discrimination occurred nor that the allegations are true or factual."4
Plaintiff agreed to withdraw his action without prejudice and waive all claims against the USDA up to the signing of the Agreement. And Plaintiff agreed not to represent any new EEO cases, except his own. In exchange, the USDA agreed to treat Plaintiff equally for training and career advancement opportunities and to provide Plaintiff further ADR training. The Agreement barred FNS from taking reprisal against Plaintiff for having filed his discrimination complaint. Also, the Agreement created a framework for resolving future conflicts:
If [Plaintiff] and his supervisor are unable to resolve differences, they both will meet with the 2nd level manager who will serve as an objective 3rd party. If the 2nd level manager is unable to resolve the dispute, the Deputy Regional Administrator (DRA) will serve as the final reviewing official.5
Further, the Agreement assigned the Deputy Regional Administrator of FNS-NERO with the responsibility for ensuring that the actions in the settlement agreement take place within the prescribed time frames.
In 2001, prior to the Settlement Agreement, Plaintiffs co-worker, Luis Perez filed an EEO complaint against the USDA, and identified Plaintiff as his EEO representative. On February 11, 2003, Plaintiff deposed Regional Director Frances Zorn ("Zorn"), second-line supervisor MacAllister and the Deputy Regional Administrator, Robert Canavan, concerning Mr. Perez's claims.
Plaintiff alleges that he was subjected to a series of retaliatory acts as a result of his prior EEO complaint against USDA and his continued representation of co-workers' EEO complaints.
Alleged Retaliatory Act # 1: USDA-FNS took away Plaintiffs ability to certify funds availability.
After learning that his name was not on a training list for USDA-FNS's new procurement system, the Integrated Acquisition System ("IAS"), Plaintiff sent his first-line supervisor Joseph Stanco6 ("Stanco") a March 4, 2003, email requesting clarification of what duties Plaintiff had with regard to funds control7 and IAS. Among other things, Plaintiff wanted to know whether he would be expected to "backup" the funds officer when the funds officer is out of the office. Stanco responded, in an email entitled "IAS Duties," by informing Plaintiff that management expected Plaintiff to back-up Regional Funds Control Officer Martin Hines8 ("Hines") when Hines is absent from the office. But, the response contained a proviso that where an employee needs certification that funds are available before a spending action occurs, Plaintiff must refer that situation to his supervisors, rather than certifying the funds himself. Plaintiff interpreted this statement to mean that his right to certify funds availability was being removed in the IAS procurement system only.
After receiving Stanco's email, Plaintiff emailed Jonathan Lash ("Lash"), a budget analyst coworker, asking whether Plaintiffs name appeared on a list of "backup funds officers" and whether Plaintiff had "certification rights." Lash answered affirmatively, and Plaintiff forwarded this response to Stanco.9
Plaintiff then emailed John Ghiorzi, the Deputy Regional Administrator, stating that USDA Headquarters confirmed that Plaintiff was the "backup funds officer" and that he had "certification rights." Plaintiff also reminded Ghiorzi that he expected the agency to abide by the June 17, 2002, settlement agreement and not reduce his duties.
Plaintiff asserts that in March 2003, Defendants took away his right to certify that funds were available on the new IAS system, but that he still had the right to certify funds availability — as did all backup funds officers authorized through headquarters and appearing on a list published January 26, 1999.
Defendants maintain that Plaintiff never had the right to certify funds, either on the new IAS system or otherwise. According to Defendants, NERO's practice allows only the funds officer, first-line supervisor and second-line supervisor to certify that funds are available before spending occurs. Further, Zorn, the supervisor with authority to designate an employee as a funds certifying officer, never delegated to Plaintiff the authority to certify that funds are available. Defendants insist that Plaintiff never had the right to certify funds and that any funds certification performed by Plaintiff was performed without Defendants' permission or knowledge.10 Before March 2003, Plaintiff certified that funds were available between one and three times a year.
In his deposition testimony, Plaintiff concedes that any alleged reduction in his ability to certify funds did not immediately affect his compensation, benefits or pay grade.11 But Plaintiff asserts that stripping him of the authority to certify funds adversely affected his career advancement opportunities.
Plaintiffs current salary is GS-11. Plaintiff alleges that similarly situated backup funds officers with the right to certify funds are at the grade thirteen pay level.12 Defendants counter that, even if Plaintiff had the right to certify that funds are available, it would not necessarily mean that he would receive an increase in salary as Plaintiff would first have to apply for a "desk audit" with the Office of Personnel Management — which Plaintiff has never done.
Plaintiff also submits that since he has lost his ability to certify funds, he has experienced a reduction in duties and has been relegated to "typing and clerk work, Grade 7 job level."13 Since October 2004, Plaintiff alleges that Defendants have assigned him the duties of data entry and filing travel vouchers.14
On March 4, 2004, Plaintiff contacted the Deputy Regional Administrator, John Ghiorzi, as the third party neutral who serves as the final reviewing official in unresolved disputes between Plaintiff and his second-line supervisor. Plaintiff maintains that Ghiorzi did not respond. Two days later, on March 6, 2003, Plaintiff filed a complaint with an EEO counselor.
Alleged Retaliatory Act # 2: MacAllister retaliates against Plaintif by denying him EEO representation.
On March 6, 2003, Stanco attempted to schedule a meeting between himself, second-line supervisor MacAllister, and Plaintiff to discuss Plaintiff's duties in IAS. Plaintiff planned to take an EEO representative to this meeting — Lou Spychalski ("Spychalski"). Plaintiff asserts that Stanco agreed and that second-line supervisor MacAllister tacitly approved Spychalski's presence at the meeting by carbon-copying him on correspondence about the meeting. When Spychalski became suddenly unavailable to attend the meeting, Plaintiff sent an email to Stanco requesting Hines as his EEO...
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