Twisdale v. Paulson

• Decision Date: 23 January 2009
• Docket Number: No. 2:04-0986.,2:04-0986.
• Citation: 595 F.Supp.2d 686
• Parties: James B. TWISDALE, Plaintiff, v. Henry M. PAULSON, Jr., Secretary of the United States, Department of Treasury, Defendant.
• Court: U.S. District Court — Southern District of West Virginia

595 F.Supp.2d 686

James B. TWISDALE, Plaintiff, v. Henry M. PAULSON, Jr., Secretary of the United States, Department of Treasury, Defendant.

Civil Action No. 2:04-0986.

United States District Court, S.D. West Virginia, at Charleston.

January 23, 2009.

COPYRIGHT MATERIAL OMITTED

James B. Twisdale, Scott Depot, WV, pro se.

Kelly R. Curry, U.S. Attorney's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

JOHN T. COPENHAVER, JR., District Judge.

This matter is before the court on the proposed findings and recommendation of the United States Magistrate Judge, filed on August 27, 2007, to which the defendant filed objections on September 17, 2007. Defendant objects to the magistrate judge's recommendation that the court deny the defendant's motion for summary judgment as to the sole remaining claim, being that of retaliation based on defendant's delay in processing plaintiff's grievances.¹

The proposed findings of the magistrate judge set forth in detail the relevant facts of this case. Defendant raised no objection with respect to her recitation of the facts.

I.

Rule 72(b) of the Federal Rules of Civil Procedure provides in part that, once a magistrate judge has "heard a pretrial matter dispositive of a claim or defense of a party" and made a recommendation for the disposition of the matter,

[t]he district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

Fed.R.Civ.P. 72(b). Under this rule, the court is to consider de novo any portion of the magistrate judge's recommendation to which specific written objection has been made. See Fed.R.Civ.P. 72(b), Advisory Committee Notes (explaining that the district judge to whom the case is assigned is to make a de novo determination "of those portions of the report, findings, or recommendations to which timely objection is made"; where no timely objection is filed, "the court need only satisfy itself that there is no clear error on the face of the record").

II.

On September 10, 2004 plaintiff, James B. Twisdale, filed this action alleging that his employer, the Internal Revenue Service ("IRS"), retaliated against him in violation of Title VII of the Civil Rights Act of 1964. In 1997, plaintiff, who is a white male, was employed as the chief of the IRS's Quality Measurement Branch in Indianapolis, Indiana. In that capacity, plaintiff was involved in the investigation of an Equal Employment Opportunity ("EEO") complaint filed by Barry Madison ("Madison"), a black female. Plaintiff was skeptical of Madison's claim and issued a reprimand to Madison for her commission of an ethical violation. Subsequently, Madison filed a discrimination claim against the plaintiff with the IRS' Equal Employment Office.

Plaintiff then filed four EEO complaints of his own, alleging that black supervisors in Indiana retaliated against him in response to his opposition to Madison's discrimination claim. On May 26, 2000, plaintiff filed a lawsuit alleging these retaliation claims in the United States District Court for the Southern District of Indiana. The district court granted summary judgment in favor of the IRS, and plaintiff's appeal failed. (Twisdale v. Snow, 325 F.3d 950 (7th Cir.2003), Def.'s Mot. to Dis., ex. 2). The claims dealt with in that action are not in issue here.

Between April 6, 2000 and October 22, 2000 plaintiff filed five agency grievances alleging retaliation based on his prior EEO activity. (Def.'s Mot. Summ. J., ex. 1). On October 1, 2000, plaintiff began to work as the IRS' Territory Manager for Compliance Area 6 of the Small Businesses/Selfemployment Division, which is based in West Virginia. The IRS' processing of the five grievances lodged by the plaintiff in 2000 is at the heart of the instant dispute. Plaintiff claims that the IRS retaliated against him for engaging in the EEO process by deliberately delaying processing of the five grievances. Specifically, plaintiff contends that his immediate supervisor at the IRS, Renee Mitchell ("Mitchell"), retaliated against him by delaying a decision on his grievances for a period in excess of a year and a half, in violation of IRS policy.²

Plaintiff's claim arises under Title VII of the Civil Rights Act of 1964. This court possesses jurisdiction pursuant to 28 U.S.C. § 1331. The parties do not contest jurisdiction.

Defendant's objections to the magistrate judge's denial of its motion for summary judgment are twofold. First, defendant contends that the magistrate judge erred in applying the holding in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2414-15, 165 L.Ed.2d 345 (2006), to federal employees. (Obj. to 2nd PF & R at 3-6). Second, defendant argues that the magistrate judge erred in finding that plaintiff established the "material harm" element of his prima facie case of retaliation. (Id. at 6-12).

A. Application of Burlington Northern to Federal Employees

In Burlington Northern the Supreme Court held that Title VII's antiretaliation provision for private-sector employees, 42 U.S.C. § 2000e-3(a), is not bound by the same limits as Title VII's anti-discrimination provision for such employees, 42 U.S.C. § 2000e-2(a). Rather, the anti-retaliation provision for privatesector employees "extends beyond workplace-related or employment-related retaliatory acts and harm." Burlington Northern, 126 S.Ct. at 2414. As a result of the decision in Burlington Northern, it is unnecessary for a private-sector plaintiff to assert an "adverse employment action" to support a claim for retaliation. Id. Instead, to prove actionable retaliation, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, `which in this context means it well might have "dissuaded a reasonable worker from making or supporting a charge of discrimination."'" Id. at 2415 (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C.Cir.2006)).

While Burlington Northern involved a retaliation claim against a private employer brought under 42 U.S.C. § 2000e-3(a),³ Twisdale's retaliation claim is brought pursuant to the statute protecting federal government employees at 42 U.S.C. § 2000e-16. A portion of the statute governing federal employees provides:

(a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage

All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of Title 5, in executive agencies as defined in section 105 of Title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Regulatory Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the Government Accountability Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-16(a) (emphasis added). Defendant acknowledges that although § 2000e-16(a) does not expressly authorize retaliation claims for federal employees, such claims are cognizable because § 2000e-16(d) incorporates § 2000e-5(f) through (k), including § 2000e-5 (g)(2)(A).⁴ (Def. Memo. in Supp. of Mot. Summ. J. at 8). Section 2000e-5(g)(2)(A) states:

No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title.

Id. § 2000e-5(g)(2)(A) (emphasis added).

Defendant does not contest the proposition that federal employees may bring a retaliation claim. Rather, in asserting that adverse employment action is an element of retaliation claims brought by federal employees, defendant contends that while § 2000e-5(g)(2)(A) authorizes courts to remedy acts of retaliation against federal employees, there exists,

an important limitation on the incorporation of §§ 2000e-5(f) through (k): Section 2000e-16 specifies that these subsections govern "as applicable," in "civil actions brought hereunder"—that is, in civil actions brought under § 2000e-16. By the express terms of § 2000e-16(a), civil actions under § 2000e-16 are limited to claims involving "personnel actions."

(Memo. in Supp. of Mot. Summ. J. at 8). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (quoting U.S. v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980)); see also U.S. v. Nordic Village, Inc., 503 U.S. 30, 33-34, 112 S.Ct. 1011, 117 L.Ed.2d 181 (1992). Thus, defendant argues, Burlington Northern is inapplicable in the context of federal government employment because, "the mere incorporation of remedies for violations of § 2000e-3(a) would be insufficient to expand the Government's sole waiver of sovereign immunity beyond the clear limits set by § 2000e-16(a)." (Memo. in Supp. Mot. Summ. J. at 3).

In addressing the...