Serrano v. Veneman

• Decision Date: 30 November 2005
• Docket Number: No. Civ. 04-0575 JB/DJS.,Civ. 04-0575 JB/DJS.
• Citation: 410 F.Supp.2d 1049
• Parties: Andrew J. SERRANO, Plaintiff, v. Ann M. VENEMAN, Secretary United States Department of Agriculture, Defendant.
• Court: U.S. District Court — District of New Mexico

410 F.Supp.2d 1049

Andrew J. SERRANO, Plaintiff, v. Ann M. VENEMAN, Secretary United States Department of Agriculture, Defendant.

No. Civ. 04-0575 JB/DJS.

United States District Court, D. New Mexico.

November 30, 2005.

COPYRIGHT MATERIAL OMITTED

Dennis W. Montoya, Montoya Law Inc., Rio Rancho New Mexico, for the Plaintiff.

David C. Iglesias, United States Attorney for the District of New Mexico, Michael H. Hoses, Cynthia L. Weisman, Assistant United States Attorneys for the District of New Mexico, Albuquerque, New Mexico, for the Defendant.

MEMORANDUM OPINION AND ORDER

BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment, filed August 31, 2005 (Doc. 21). The primary issue is whether the Defendant has demonstrated that there is no genuine issue of material fact on any of Plaintiff Andrew J. Serrano's claims and whether the Defendant is entitled to a judgment as a matter of law. The Court held a hearing on this matter on October 20, 2005. Because the Court finds that the Defendant has shown that there is no genuine issue of material fact as to any of Serrano's claims and that the Defendant is entitled to judgment as a matter of law, the Court will grant the Defendant's Motion for Summary Judgment.

FACTUAL BACKGROUND

In 1982, Serrano began his career with the United States Forest Service ("USFS"), as a GS-3 Forestry Aide. See Affidavit of Andrew Serrano ("Serrano Aff.") ¶ 2, at 1 (executed September 23, 2005). Fire-fighting was his primary duty. See id. Serrano gained experience with controlled burns, wildfire suppression, forest thinning and other pre-suppression activities, marking trees, trail work, and recreational area maintenance. See id. Serrano is now certified as a Type I "Burn Boss" — one of only 3 or 4 on the Santa Fe National Forest. See id. A Type I Burn Boss is a firefighter who is eligible to supervise others in controlled burn situations as well as in combating wildfires. See id.

At the time of the events giving rise to Serrano's action, the USFS employed him as Fuels Management Technician, GS-7. See Complaint ¶ 2, at 1, filed May 21, 2004 (Doc. 1). Serrano's immediate supervisor was Kevin Joseph, Fire Management Officer ("FMO"), Española Ranger District. See Deposition of Andrew Serrano ("Serrano Depo.") at 106:23-24 (taken June 20, 2005). Leonard Atencio was the Forest Supervisor and Robert Leaverton served as his Deputy. See id. at 40:7-11.¹

1. Prior EEO Activity.

According to Michael Matarrese, Fire and Aviation Staff Officer, Santa Fe National Forest, a female USFS employee approached him in 1998 and complained about Serrano's behavior. See Declaration of Michael T. Matarrese ("Matarrese Decl.") ¶ 10, at 2-3 (executed August 25 2005). She informed Matarrese that Serrano was bothering her, that he would not leave her alone, and that he was touching her inappropriately. See id. She stated that he had, on more than one occasion, touched her breasts and buttocks, and that he continued to do so after she told him to stop. See id. In his declaration, Matarrese states that he found the employee's allegations both compelling and disturbing, and he concluded that Serrano had engaged in the conduct as his accuser described. See id.

On March 11, 1998, Atencio proposed Serrano's removal from federal service. See Serrano Depo. at 11:4-6. The proposed removal was based on charges of sexual misconduct. See id. at 84:6-19. Serrano was subsequently removed from federal service on June 16, 1998. See id. at 51:11-16; Merit Systems Protection Board ("MSPB") Settlement Agreement at 1 (not dated).

Shortly thereafter, Serrano filed a complaint with the MSPB, challenging his removal. See Serrano Depo. at 51:14-16. In August 1998, the USFS and Serrano entered into a settlement agreement, resolving all EEO claims and claims pending before the MSPB. See id. at 51:17-23. The most recent EEO activity preceding Serrano's non-selection for the Hotshot Superintendent position was Serrano's MSPB appeal filed in June 1998. See id. at 51:22-52:2.

2. Hotshot Vacancy.

In November 1999, the USFS issued a Vacancy Announcement, R310-020-00G, for the following position on the Santa Fe National Forest: Supervisory Forestry Technician (Hotshot Superintendent). See Matarrese Decl. ¶ 3, at 1.

Serrano applied for the position. See Complaint ¶ 14, at 4. The USFS authorized Michael Matarrese, Fire and Aviation Staff Officer, Santa Fe National Forest, to impanel a number of USFS employees to review and rate the applications. See Matarrese Decl. ¶ 4, at 1. That panel consisted of the following employees: (i) Kevin Joseph, Fire Management Officer, Española Ranger District; (ii) Danny Kellogg, Acting Fire Management Officer, Coyote Ranger District; (iii) Renee Montoya, Santa Fe Hotshot Squad Boss; and (iv) Ron Simpson, Acting Santa Fe Hotshot Foreman. See id. Matarrese was also authorized to make a recommendation upon completion of the panel's review and evaluation of the applications. See id. Matarrese was chairman of the panel. See Affidavit of Ron Simpson ("Simpson Aff.") at 2 (executed January 29, 2001).

The panel met at the Santa Fe National Forest Service office in Santa Fe, New Mexico. See Matarrese Decl. ¶ 5, at 2. The applications were distributed to all panel members, and Matarrese asked the panel to rate the applications using the evaluation criteria set forth in the Vacancy Announcement. See id. The panel considered the following factors: (i) safety; (ii) communication skills; and (iii) fire management knowledge skills. See Simpson Aff. at 3. After reviewing the applications, the panel concluded that Serrano, Richard Tingle, and two other applicants were qualified for the position. See Evaluation of Candidates (dated January 4, 2000); Matarrese Decl. ¶ 2, at 1. The panel determined that the top three applicants were Tingle and two others that did not include Serrano. See Matarrese Decl. ¶ 6, at 2; Simpson Aff. at 2.

The panel interviewed the top three candidates by telephone. See Matarrese Decl. ¶ 6, at 2; Simpson Aff. at 2. At the end of the interviewing process, the panel concluded that Tingle was the most qualified applicant for the position. See Matarrese Decl. ¶ 7, at 2; Simpson Aff. at 3. Simpson determined that, although Serrano had at least Tingle's level of fire management knowledge background, Tingle had more experience, including Hotshot experience, than Serrano — Tingle had been a Hotshot supervisor for at least 3 years — and Tingle's presentation of his application was much stronger than Serrano's. See Simpson Aff. at 3. The USFS's Personnel Office prepared a Certificate of Candidates, which was forwarded to Robert Leaverton, Deputy Forest Supervisor, for selection. See Certificate of Candidates (dated January 13, 2005). Serrano's name was on the Certificate. See id.

Matarrese recommended that Tingle be selected for the position based on the panel's evaluation and results of the interviews. See Matarrese Decl. ¶ 9, at 2. He did not recommend Serrano for the position for two reasons: (i) Serrano had not completed the Technical Fire Management Training Course; and (ii) he believed that Serrano lacked the skills and judgment necessary to be an effective supervisor based on the past alleged sexual misconduct. See id. ¶¶ 9, 10, at 2-3. Matarrese stated that he could not, in good conscience, recommend that Serrano be placed in a supervisory position given the seriousness of the female employee's charges. See id. ¶ 11, at 3. On January 13, 2000, Leaverton selected Tingle for the position. See Complaint ¶¶ 14, 17, at 4.

The Defendant contends that, approximately two weeks before the selection, Serrano informed at least one of the three panelists evaluating the applications — Simpson — that he had no interest in the position; he asked not to be selected for the job. See Simpson Aff. at 3. Serrano in his affidavit maintains that he never said this to Simpson. See Serrano Aff. ¶¶ 14-15, at 4. In his earlier deposition, however, Serrano stated only that he could not recall ever having made that statement. See Serrano Depo. at 72:9-73:25. The Defendant also contends that before the selection, Serrano stated to Kevin Joseph that, if he were not selected and after he was passed over, he intended to file an EEO complaint and use that complaint to leverage himself into another GS-9 position on the Española Ranger District that he wanted. See id. at 77-78. Serrano, in conclusory fashion, argues that this is a mis-characterization, see Plaintiff Andrew J. Serrano's Response in Opposition to Defendant's Motion for Summary Judgment ("Response to Motion for Summary Judgment") at 11, filed September 28, 2005 (Doc. 26), and that at no time was he pursuing the hotshot position solely for the purpose of creating an EEO complaint and thereby gaining leverage, see Serrano Aff. ¶ 18, at 5.

Serrano bases his Complaint for Discrimination and Reprisal/Retaliation on three EEO complaints he filed with the United States Department of Agriculture's Equal Employment Opportunity Office in Washington, D.C. Serrano filed his first EEO complaint on June 14, 2000. In that complaint, Serrano alleged discrimination on the basis of race/national origin, color, and reprisal when he was not selected to fill a vacant Supervisory Forestry Technician position — Hotshot Superintendent — on the Española Ranger District. See Serrano Depo. at 50:4-25.

3. AFMO Vacancy.

In October 2000, the USFS issued a Vacancy Announcement, R310-002-01, for the following position on the Santa Fe National Forest: Supervisory Forestry Technician. See Vacancy Announcement at 1 (not dated). The USFS subsequently amended the Vacancy Announcement, changing the area and level of consideration from Region 3 to Forest Servicewide. See Serrano Depo. at 148:16-19. Serrano applied for the position. See Complaint ¶ 18, at 4.

John Miera, the recommending official for the position, asked Joseph and Kellogg to review...