Document 21-4
Filed 03/15/2007
Page 1 of 25
-/25) I may request,'based on the info from #2 and #3 above, to me~twith the s,ame people and discuss my job being ~:e~lassified to only one function i.e. lands or engineering. ' °¯ 5) By vi~e of the fact that the President of the United States, the Chief. of the Fore~, Sbrvice, the Regional Forester, and the local Forest .. ...Supervisor all support the Union, .that management of this forbst be . direbted to uphold managements agreement to abide by the Master , .. \ / Agre~ment and that this act be monitored. Thoseactions by ¯ ~i management that reflect :the notion that the Union.is reg ,a, rded as ~ negative be d~dt with s~iRly:. 6~. I request 3 n~onths of administrative leave to recoup from the stress ~ ,+.-. . this and these c~m:~m~a.-ha'¢e~plae~ me.re. .In following the dixeoti6n of the Master Agreement~ I am submitting this complaint wit~ the iirst-line officer, Dick Judge. , ......
CC Lord Ghormley - Personnel. Cathy Frey- Local 701 President
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 2 of 25
10/19/2000 Meeting for Kim's grieVanCe. Those present: Lo~ Ghomaley Dick Judge Cathy.Frey First issue was Kim's job audit. Di~k Judge stated that he Was going to redistribute the GS-9 COP, duties, that were in Kim's job description, instead of noncompetitively promoting Kim from a GS-7 to GS-9, Dick said that he felt that COWs are tied to tl~ contract on a more time eonsumingbasis than Impectors. Cathy asked ifCOR.'s can be assigned as impeeto .rs, Dick said yes., Cathy thenasked if Inspectors can be assigned as COR's, Dick said no. Cathy then asked if it wouldn't allow Dick more flexibility to have more COR:s, who can do both duties; than Inspectors. Dick said no~" Cathy Frey askedwhy Kim was put through such a painful and challenging testing and - " would not be compensated for it? Dick replied: COR knowledgeid neecl~d for upeomitag-projects As Kim being an inspector, this would help her knowledge base. Dick considers COP,. torts a learning experience f~r'animpectm'. Cathy Frey asked Dick where he would distribute her duties. Dick could not answer. Cathy asked if he had done.a work-load analysis. Dick did not. ¯ KJm informed the group of the recertification criteria in the Construction Certific~tion Handbook. Kim reviewed the minknum 160 hours in a 3-year period for valid " certification. In a nutshell, the forest is not following critei-ia of the construction certification handbook in regards to use of COWs on this forest. The objectives are not being met: .The objective of the certification programis to ensure that-persons who ackminister engineering construction contracts.are fully qualified and to pro.vide a u~form and consistent approach to measuring.an inddviduaPsqunl~catJons. The question was "WHO" makes, decisions on who is certified. Dick replied that the forest engineer recommends to the RO folks who should be certified. gain emphasized that she is not the ody GS-7 that took became ER/COR certified ttiat felt that this would lead to an upgrade due to COR duties. She has statemems from two other employees who thought the same.
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 3 of 25
Dick said it was a ~'mi.scommunicatio~,!,'. There was no intent~to utilize these employees as OR's, excepton a aeed .e,d basis: ,' " .. Cathy again asked Dick abo~,t projected program. Dick said he needs to look into a crystal ball to project workl~'~ds. " Cathy Frey referred to Kim not.being..Imate.d e~y due to ~uion activities. Kim also spoke of an ELMO meeting where Jim became very upset when pqsition descriptions .were ~xlked about.He directed his auger.~t Kim. Kim was speaking as a ~iaion official, and before she spoke, made that clear to the group.
:
¯ 3ira made some documehted statements to the fact of Kim being a union officiak
Guy Adams canoe hito tlie room to t~,~about job oppommities regarding lands. Lord will check out training oppormrdties from the KO:for 51719 trainees. Bottom line, there is no money in lands per Guy. Also, lauds, is not a forest priority.
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 4 of 25
OF PERSONNEL ACTION
15. TO: PosWon Title and Number
CIVIL ENGRG TECHNCN
01011909 N5052"
'~
GSI..0~021 0~ ! 0~ ! 33,9ZS.00.1 ~ ..
' .00
31~762.001 2r15,3.001 33r915.001
~ Nem~ and ~Uon
FOREST SERVICE
,~
NORTH REG #REGIONI#BEAVERHEAD-DEERLODGE NAT'~ FOR AG 110102000004000000 PP 23 2000
~
[25. Agency Use 2-CondlUonal 3-1ndef!nlte
O-None 1-P~'mlnent 28, Annultlnt Indicator
9--~ NOT AP]~L.ICABLE ~2. Wed= Schedule
063~
m/ing O~pa~lment or Agency
5~. Sig~tum/Authentication and ~tlo o~ ~pt~ns ~fl~l
DE~ART~E~ OF AG~ZOULTH~E ~.ABo.w~ ~.~o...iom:=~ ~.~.~.~Dot~
~-315
~
DONNA D BEECHER
~d~ions bier 1= 7R1 ~ Not U~b~ A~et ~'
2 - OPF Copy - Long-T
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 5 of 25
APPLICAI~,, BIOGRAPHICAL,
1,
lllJS~ ~ries, Grace Work Experience Time-in:Orade I~itials / Date
"lb~n9 filled. Cl .early identify any temporary promotions, use more than one lin~ for each wor,,k. t exp~ience if n~. , .
1 ~ I
1112000 Present
Posltl~Tltle Seri~ Civil Engine~ing Technician 802 G5 7,
A~, unto L~
Beay~head-be~riodge NF Butte Ronger bistri~ 1820 Meadowlark Butte, #iT 59701 Beaverhead-Deerlodg~ NF Butte Ranger.District ~820 AAeadowlark Lan~ Butte, #iT 59701 Beaverhead-D~..rlodge NF BIJ~'e ~l;~llnger l)istrict ' l
09/2300 to !11;'.O00
T~mporary Promotion -Civil Engineering Technician 802 GS 9
1995- ~000
Civil Engineering Technician 802 G5 7
~820 ~eadowlark Lane
Butte, ~T 59701. Civil Engineering Technician 802 G5 7
b~erlodge NF Supervisors Offic~
400 ~. ~ain ~u~o ~T 5970~. b~riodge NF Supervisors ~so ~AT 5970:~ Oe~rbdge NF Sup~sors Offics 400 ~. B~e0 ~T 5970:~ S~sors ~fic~
Temp~r~-y Pr~motio~ C~v~J Engineering Techn~dan 802 GS 7
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 6 of 25
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 7 of 25
Dec~-mber 2O01
Jtme 2000 ¯
Certificate of Appreciation
~cat~ of Me~it
Outstanding work on the 200I OIG Audit dealing wi'th road Ri~hts-of-Way.
working with exmwyan~ and title do~un~z~ for th~ T0ba~.~o.. Root I.and Exchange
August 1999~
cdr,dfi~at~ of.Medt Administration of Contra~ for 4
-~.~m~rs and G~org~town Lak~
Paving
:.~of~tion ',
a~lu~ition ~s for ia preparation of posting to Status
¯ ...
Mar~h 1998 ....
Support to the Timber Sale Program by completing License a~x, ess to s~ve~l proj~ls
1997
Let~ of Appre~_ation
~n title case preceding for Rights-of-Wa~, Pro-chases, and Donations, Ce~tific~t~ of Merit Assisting the forest in the title pmparation of 12 R/W cas~s and ~n~'~ adminislr~on of Timb~r Sale and Pubfiz Works ~ Con~ious efforts to ~ C~vfl
February 1989
D~mb~r 1989
L~t~r of Appr~afi~
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 8 of 25
Case 1:06-cv-00306-MCW Departmen~ of Agriculture ~~le Cede: 6130 ' Route To: Subject: Promotion
Document 21-4
Gallatin/Custer ~ationa~ Forests
Filed 03/15/2007
Page 9 of 25
Ferest Service
Beaverhea~l-Deerledge/
Zene Human Resource Office P. O. Bex 130 ~ ' Bozemau, MT
July 7, 2003
To: K~m ,Lange Congratulations Kim! This co~ your promotio~ as a Re~l. ty Specialist, GS-1170-09 on the B~aver1~ead-Deerlodge .National Fores{, Supervisors Office, with a duty staff'on at Butte, Montan~ The e~..e~dVe date is July 13,'2003. Your tour of duty will.be permanent full-time..This position has no known.,
t
promotion potential. This position ~'included in.the bargai.~i~g unit~ Your supetwisor, Gary
Howard will develop your performance standards and training plan within 30 days. If you have any questions,please feel free to contact Sue Grunenwald at (406) 587-6783. Congratulations on your promotion! /s/Debbie Gibson DEHBIEGIBSON " Employment Officer cc: OPF B&F Stafi~g
Gary Howa~
for the LaBd and Serd~ ]People
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 10 of 25
R~CEIVd
JUL 2 8 338
Gregory C. Black CORETTE POHLMAN & KEBE 129 West Park Street P.O. Box 509
U.S. ATTORNEY'S
~UTTE,
81LLINGS, MONTAN
2003 JUt £~4 PN 4 25
Telephone: (406) 782-5800 723 -8919 Butte,Facsimile..Montan~./40~)59V0~'" Attorneys for Plaintiff TEE, ..U!qZ~EII, S..TAT_ES,, ,DiSm.~ICT COURT FOR THE 'DISTRICT OF MONTANA
BUTTE-- D~Vl S r.4D~, -
TERESA KIM LANGE, Plaintiff,
-VS -
COM?LAiNT AND DEMAND FOR JURY TRIAL
ANN M. VENEMAN, SECRETARY, UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE;
~!RISDICTIQN
This court has jurisdiction over this matter pursuant to 28
USC ~Z331, together with 29 USC ~20~(d) and 42 USC ~2000(e-2). This complaint states causes of action under Title VII of the Civil Rights Act of.!964, as amended, the Civi! Rights Act of !99!/and the Equal Pay in Employment Act, 29 USC §205(d).
Venue of"thfscourt '
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 11 of 25
Service") were performed for the Beaver~ead-Deeriodge Nation~l Forest ("BDNF") in Butte, Montana~ PARTIES 3. Plaintiff, Teresa Kim Lange (~'Lange"), is a female who has been ~ federal employee since 1974. Lange has been a GS-802-7 Civil En~n~£n~-~Tec~n.ician since !991. She has been Inspector
Ce~Zified~.~in~e-~!g.93 and COR~ certified since 1997.
The United States Department of Agriculture "USDA") is an administrative agency of the United States Government with its principal offices !ocated at the United States Department of Agriculturein Washington, D.C. Ann M. Veneman is the Secretary of the USDA and is named in her capacity as head of the USDA. In that capacity, Veneman oversees a certain agency known as the Forest Service. 5. Within the ~ime prescribed by law, plaintiff filed an informa!. EEO Complaint against the Forest Service alleging discrimination based upon her sex, reprisal and violations of the Equa! Pay in Employment Act. 6. Those complaints were not resolved on an informa! basis, and on June 29~ 2001, plaintiff timely filed a formal EEO complaint concerning sex discrimination, hostile work environment, reprisal and violations of the Equal Pay in Emplo?~ent Act.
2 - COkq~i~kilfT A-h-!] DEM!hND FOR .3-J~..Y TRIAL
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 12 of 25
USDA and Forest Service failed to timely respond to the formal EEO complaint, failed to timely investigate the informal complaint and has failed to timely provide a notic9 of final agency decision concerning this formal EEO complaint. 8. Pl~int-~f~.:'has'gi~ven written notice to USDA and Forest Service that~ d~=~.to,.-i~,..fa,i~res to timely participate, as required by law, in the formalEEO complaint process, plaintiff intended to fil'e an action in federal district court prior to the issuance of a final agency decision. USDA and Forest Service have not responded to p~aintiff's notice of intent to file court action. 9. In 1997, at the ur£ing of management, plaintiff devoted substantial time to become COR certified in her position. By
obtaining her COK certification, plaintiff became a more valuable employee who could perform a wider range of duties as a Civi! Engineerin~ Technician.
At the request of management, plaintiff prepared a position description with the assistance of her supervisor in.an ezfort to describe accurately what duties plaintiff was performing~ That position description was sent to personne! for classification. The resul~ts of that classification were~received on October 3~ 2000~ The classification showed that plaintiff was perfor~.in~ GS-9 leve!
~ork.
COMPLAINT. .~ihUD DE.~_~_ND FOR ~J~Y TRI~L
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 13 of 25
A personnel
officer advfsed management
to either
noncom~etitively promote plaintiff or to redistribute her gradecontrolling job duties. Management refused to noncompetitive!y promote plaintiff even though management had noncompetitively promoted males in the BDNF and other male~ within the region. Management attempted'to rationalize its refusal to noncompetitive!y promote pi~i~tfff~onthl basis that plaintiff did not perform her COR duties on a year-round basis, even though those duties are related to construction, and management was fully aware that construction work on the BDNF is seasonal only.
In the BDNF, management had targeted the civil engineering pe,maOnne! t.o have. GS-7, GS-9 and GS-I! employees in the Butte office. The GS-7 and GS-9 positions were filled by females, and plaintiff qualified to fill the GS-9 targeted position.. Nevertheless,..~.management refused to consider a noncompetitive promotion lot"plaintiff.
Plaintiff was an active participant in the Nationa! Federation of Federal Employees Local ("NFFE") in the BDNF. P!ainiiff filed a union grievance concerning management's position in refusing to promote her, and plaintiff's participation in the union process was ~ ~m~=,~a~-=.~u~v~ry. Management refused to complete the process o~4~=~ fo~,.grievances in the Master Agreement between NFFE and the Forest. Sea--vice.
~- - COMPLAINT_ AND DEM_~_SUD~ FOR J~uq~Y TRIAL
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 14 of 25
14. Another male working for the Forest Service was promoted to a GS-9.1evel upon receipt of his COR certification. COUNT I. 15. Plaintiff ingorporates para£raphs I - 14 of this complaint as iff~I~ set f~r~ ~erefn~
Plaintiff was treated differently in the termsand conditions of her emp!oyment by the management of the Forest Service on the
basis of her sex. work environment.
Plaintiff was also forced to work in a hostile
As a direct and proximate, result, oZ~such sex discrimination and hostile work environment, plaintiff has suffered and continues to suffer from severe ezotional distress, humiliation and embarrassment and is entitled to other compensatorydamages.
As a direct and proximate result of such sex discrimination and hostile work environment, plaintiff was denied promotion and advancement and has suffered a loss of back pay, benefits and front pay, including interest on the back pay and benefits.
9;s~,~a~.dixect~a.nd., p~e~immt.~res~u,!Z. $Z.-smch sex discrimination sm_i..hosti!e..womk..em~imenmem.~..~0..p!~i~tif~_has been forced to use annual leave and sick leave which she othe_~-wise would not have had to use and could accumulate for future use. 5 - COMPLA!i~-T 9!TO DEN_A.ND FOR ~rU~RY TEIAr-~
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 15 of 25
20. Plaintiff° realleg~s and incorporates by reference paragraphs 1 - 19 as if fully set forth herein.
Plaintiff engaged in protected~ activity to address the discrimination and hostile work environment which she ~aced. 22. Management of the~Forest Service knew about plaintiff,s
protected activity. 23. Forest Service employees took adverse actions against
plaintiff in her employment which constituted reprisal for her
As a direct and proximate result of such reprisal by the Forest Service, ..plaintiff has suffered and continues to suffer from severe emotional distress, humiliation and embarrassment and i~s entitled to other compensatory damages.
As a direct and proximate result of such reprisal by the Forest Se~ice, plaintiff was denied promotion and advancement and has Suffered a loss of back pay~ benefits and front pay~ including inCere'st' on the back". pay~ and benefits.
As a direct and proximate result of such reprisal by the Forest Service, plaintiff has been forced to use annual leave and 6 - COMP~AI~ ~£~ DE~N~ FOR ~u~Y TRI~
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 16 of 25
sick.leave which she otherwise would not have had to use and could accumulate, for future use,
27. Plaintiff rea!leges and incorporates by reference paragraphs 1 - 2~ as if fully set forth herein.
Plafntiff ..... performed the same duties as male GS-9 Civil Engineering Technicians, both in the BDNF and in other national forests.
29.
Despite performing duties at the GS-9 level, as shown by the classification of Lange's position description, management refus.ed t~ pro~e~!,ycomp:e~s~.~!,~n~ff.~f~, he~.j.~b duties so performed. Males who performed .duties¯ highe~, tha~,, their GS leve! were noncompetitive!y promoted and properly compeDsate~. An additiona! male engineering technician on the BDNF is paid at the GS-7 leve! and has the same job description as Lange, but cannot perform some of those job duties because he has not been able to pass required tests roy certification to perform those duties. 30. The Forest Service has violated the provisions of the Equa! Pay in Employment Act. As a direct and proximate result of these =n~z~.~e.d. to: m~c~, pay and increased ~-~=u~=,~ ~z.~._~.~.- z's .....
as a GS-9,
7 - COMPS'l!NT .~N-D DEN_~,ND FOR ,_TT_rg.y TRIAL
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 17 of 25
COUNT iV. 31. Plaintiff realleges and incorporates by reference paragraphs
~2. Plaintiff has been forced to retain counse! to prosecute this action and is entitled to an award of attorney fees in this matter. WHEREFORE, plaintiff respectfully requests-~the fol!owing relief: !. For an award of back pay and benefits, With interest and front pay in an amount to be determined by the jury; 2. For an award of .compensatory damages for the severe
emotional dis£ress, emi~arrassment and humiliation suffered by
3;..~ For: re;in.s~.a.~emen~,.o~.!os~,. 5nn~al leave and sick leave which plaintiff was required to use; 4. For ~easonable attorney fees in prosecutin9 this action; 5. To enjoin defendant to cease and.desist all discriminaiory and retaliatory action against plaintiff; 6. For costs of suit; 7. For all relief to which plaintiff is entitled. DATED this ~-~ day of July, 2003. CORETTE POHLM_AN & KEBE
~ark Street
Eutte, Montana 59703 Attorneys for
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 18 of 25
0
o
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 19 of 25
/'Memorandum
Subject:
Date:
Teresa Kim Lange v. United States Cause No. CV 03-61-BU-RFC
To:
February 4, 2005 2003V00191 TJC/lat
From:
Donna Steffensen Supervisory Human Resource Specialist U.S. Forest Service P.O. Box 7669 Missoula, MT 59807
Timothy J. Cavan Assistant U. S. Attorney P.O. Box 1478 Billings, MT 59103 Telephone: (406) 247-4674 Fax: (406) 657-6989
Enclosed please find copies of the.,,following: ORDER, filed January 26, 2005. " EnclostJres ¯ William W. Mercer United States A~omey Mark Lodine, Esq. Office of General Counsel Department of Agriculture P.O. Box 7669 Missoula, MT 59807 Telephone: (406) 329-3066 Fax: (406) 329"3064
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 20 of 25
STATES DISTRICT COURT FOR. THE DISTRICT OF MONTANA BUTTE DIVISION TERESA K]M LANGE,
Plaintiff,
VS.
ANN M. VENEMAN, SECRETARY, LrNITED STATES DEPARTMENT OF ¯ AGRICULTURE, FOREST SERVICE,
Defendants.
) ) ) ) ) ) ) ) ) ) ) )
CV-03-61-BU-RFC
ORDER
INTRODUCTION
PlaintiffLange has asserted claims for discrimination based upon sex, retaliation, hostile work environment, and violations of the Equal Pay Act. The government now seeks summary judgment on all of Plaintiff's claims. The government argues that Lange elected a remedy under the collective bargaining agreement utilized on the Beaverhead Deerlodge National Forest (BDNF) to challenge her adverse employment action and cannot now assert a civil rights claim concerning that matter. In the alternative, the government seeks dismissal of Lange's claims because they were not timely filed and because they do not satisfy the legal requirements to state a claim, The government contends that Lange's claims for hostile work environment should be dismissed because they were not specifically alleged during the administrative phase of her EEO claims. Finally, the government seeks dismissal of Lange's Equal Pay Act claim based upon the
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 21 of 25
of limitations. FACTS
Lange has been an employee of the Forest Service since 1974, doing seasonal work until 1991. She obtained a GS-7 Civil Engineering Technician position in 1991. In 1995, Lange studied for the Engineering designation (ER Inspector) position. In 1997, Lange received a Contracting Officer Representative (COR) designation. In 1998, 1999 and2000; Lang~s supervisors assigned her COR duties to perform. As a Forest Service employee, Lar~,ge's sup,ervisors were obligated to ensure that herposition description was at least 80% accurate. As a GS-7, Lange could perform COR duties, but was not supposed to do those more than 20% of the time to maintain the accuracy of her position description. Once Lange's position description was reclassified in 2000, it was determined that she had been exceeding the 20% limitation as a GS-7. On June 15, 2000, Lange's position description was submitted to the personnel office for classification. Personnel was then given 90 days to classify Lange's position. Personnel could not complete the task by the deadline, and so asked Lange for an extension, to which she agreed. When the additional time expired and personnel had not completed the classification, Lange file, d a grievance, doing so on September 29, 2000. Personnel completed the classification process on October 3, 2000, determining that Lange.was working as a GS-9 due to the amount of COR duties she was performing. Personnel advised management that it could either noncompetitivelypromote Lange to a GS-.9 position or remove her COR duties. At an October t9, 2000 meeting, management advised Lange that her COR duties would be removed. At themeeting, Lange and her union representative asked that -2,
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 22 of 25
provide a workload analysis, reviewing the amount of work to be performed in engineering and addressing who would be performing those COR duties if removed fi'om Lange. Lange's removal of duties was formalized on October 24t~, and provided to her on October 25t~. The effective date for the change was November 5, 2000. Lange was informed that "[y]ou have the right to grieve this decision in accordance with the negotiated grievance procedure between the Forest Service and the National Federation of Federal Employees. If you choose to grieve, you should present your grievance in writing .. within 30 days..'.! On November 3~d, Lange attended another meeting as part of the g6evan~e process. During this meeting,.management informed Lange that it would not reconsider its decision to remove her COR duties. Also durhng this meeting, another request was made to management to supply a workload analysis. On November 21; 2000, Lange and the union filed a Notification of I.ntent to File Grievance, requesting an extension of time until January 15, 2001 to file a formal grievance, pending receipt of the requested workload analysis. On December 18, 2000, management denied Lange's request for a .W..orkload analysis. On December 20, 2000, Lange and the union filed a formal grievance. Th~ grievance letter stated that "Ms. Lange is grieving... Noncompetitive Promotion because management decided to eliminate/redistribute the grade-controlling duties instead of promoting her. This decision is arbitrary and capricious." On January 18, 2001, management denied Lange's grievance on the basis that it had not been timely filed under the Master Agreement. In its denial letter, management informed Lange that if she disagreed with the decision, she could grieve the decision to the Forest Supervisor. On February 27, 2001, the union filed a Prenotification of Unfair Labor Practice Charge concerning -3-
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 23 of 25
of the December 20, 2000 grievance. On April 27, 2001, union representatives and management met concerning Lange. Management reiterated that it would not reconsider its decision to remove Lange's COR duties, but also stated that it would prepare a workload analysis, which would take about a year to complete. The workload analysis was never prepared by management. In late April of 2001, Lange discovered that a male Civil Engineering Tech~cian who had applied for and received a job was receiving an upgrade to GS-9 upon completign of his COR designation. Lange then filed informal and formal EEO complaints under ttie Civil Rights Act and claJ.ms of violation of the Equal Pay Act. SIYMMARY JUDGMENT STANDARD Summaryjudgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Rule 56(c) Fed. R. Cir. P. Once the moving partyhas satisfied his burden, he is entitled to summaryjud ...~. ent if the nonmoving party fails to designate, byaffidavits, depositions, answers to interrogatories or admissions on file, "specific facts showing that there is a genuine issue for trial." Celotex Corp. ~. Catrett, 477 U.S. 317, 324 (1986). The Court must view the evidence in the light most favorable to the nonmoving party. U.S. ex. rel. Anderson v. Northern Telecom, 52 F.3d 810, 815 (gthCir. 1995). All reasonable inferences must be drawn in favor of the nonmoving party, but such "inferences are limited to those upon which a reasonable jury might return a verdict." The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient. Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, -4-
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 24 of 25
1221 (9th Cir. 1995).
The United States Supreme Court has determined that summary judgment is proper when a party with theultimate burden of proof at trial is unable to produce evidence of an essential element of their claim. In Celotex v. Catrett, 477 U.S. 317, 322-323 (1986), the Supreme Court stated: In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showingsufficient to establish the .existence of an element essential to that party's case, and on which that " party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]h[e] standard [for granting Summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a) .... "Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
ANALYSIS DID LANGE PROPERLY EXttAUST HER ADMINISTRATIVE REMEDIES REGARDING HER DISCRIMINATION AND RETALIATION CLAIMS?
Defendant argues that Lange failed to exhaust her administrative remedies through the
negotiated grievance procedure prior to bringing suit. 5 U.S.C. § 7121(d) allows an aggrieved employee covered by a collective bargaining agreement to bring a grievance pursuant to the negotiated grievance process or through an EEO complaint, but not both. See also Vinieratos v. United States, 939 F.2d 762, 768 (9t~ Cir. 1991) ("[u]nder the terms of the Act, a federal employee who alleges employment discrimination must elect to pursue his claim under either a
statutory procedure or a union-assisted negotiated grievance procedure; he cannot pursue both
-5-
Case 1:06-cv-00306-MCW
Document 21-4
Filed 03/15/2007
Page 25 of 25
~avenues, and Ns election is irrevocable.") Moreover, once the matter has been the subject of a written grievance, the employee cannot pursue an action in federal court until she has fully exhausted the elected grievance process. See e.gl American Federation of Government Employees, Local 2052 v. Reno, 992 F.2d 331,333-36 (D.C. Cir. 1993). In this case, Lange concedes that if she "i~tiated a grievance concerning the merits of the removal of her COR duties, she could not thereafter filean EEO complaint concerning that same charge." Lange asserts, however, that.her December 20, 2002 grievance "only dealt with management's failure to providewritte~ n justification, for removing [her] COR duties, not whether such action was arbitrary and capricious." The Court disagrees. Lange's grievance contained two parts. The first part, submitted on behalf of the union, addressed the Forest Service's refusal to perform a workload analysis. The second part, submitted by Lange, specifically related to. management's removal of her grade-controIling COR duties and its refusal to promote her to a GS-9. This is a fact beyond dispute, evidenced by the language which both the union and Lange chose to reflect her grievance. For example, in the f~rst part, the union ch~acterized Lange's grievance as follows, 'Us. Lange is grieving Article 14(5) Noncompetitive )romotion because management decided to eliminate/redistribute the grade controlling duties instead of promoting her. Tiffs decision was arbitrary and capricious." In the second part, Lange entitled the nature of her grievance as "[m]anagement has the right to redistribute grade-controlling duties," and then went on to provide extensive detail of her COR certification process, the projects she had been assigned as a COR, and setting forth her objection to the removal of her COR duties rather than non-competitively promoting her to a GS-9. Lange's grievance also implied that her perceived unfair treatment was the result of her union
United States Free Forms
Canada Free Forms
United Kingdom Free Forms
Australia Free Forms