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Kinzie v. Perdue

United States District Court, W.D. Oklahoma

July 19, 2018

TERRY KINZIE, Plaintiff,



         Plaintiff Terry Kinzie sued the United States Department of Agriculture (“USDA”), the Secretary of Agriculture, the Conservation of the Natural Resources Conservation Service (“NRCS”), [1] and the Chief and Acting Chief of the NRCS, asserting claims for age discrimination and retaliation under the Age Discrimination in Employment Act of 1967 (“ADEA”). The court previously dismissed plaintiff's claims against all defendants except for the Secretary of Agriculture, granted the Secretary summary judgment on two of plaintiff's three grounds for his retaliation claim - hostile work environment and constructive discharge[2] -- and dismissed his requests for compensatory and punitive damages. See Doc. #22. The Secretary now seeks summary judgment on plaintiff's remaining disparate treatment and retaliation claims, which are based on his allegations that he was not hired for a newly created position because of his age and that his performance review was changed in retaliation for reporting the age discrimination.

         Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine dispute as to a material fact ‘exists when the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.'” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1141 (10th Cir. 2011) (quoting Zwygart v. Bd. of Cnty. Comm'rs, 483 F.3d 1086, 1090 (10th Cir.2007)). Considering defendant's motion under this standard, the court concludes it should be granted with respect to plaintiff's discrimination claim and denied with respect to his retaliation claim.

         Background [3]

         In 2015, as part of result of a nationwide reorganization of administrative and other functions, NRCS created a new position, that of Business Services Specialist (“BSS”), in the Assistant State Conservationist for Management and Strategy (“ASTC(M&S)”) section of NRCS. According to the job announcement, the person who was hired for the position would “perform[] a wide variety of duties and assignments in support of business operations and administrative services necessary to accomplish the mission responsibilities of the State or Area office and the NRCS.” Doc. #44-12, p. 2.[4] Thirty-three BSS positions were to be filled across the country, with one in Oklahoma. Plaintiff applied for the Oklahoma position. At the time he was over 40. He had been an Oklahoma NRCS employee since 2009, starting as a contract specialist and eventually becoming a realty officer. The person hired instead of plaintiff, Joshua Ketch, another NRCS employee, was in his 20's. Ketch had worked at NRCS full-time as a rangeland management specialist since 2010.

         The selection process was straightforward. The Office of Personnel Management (“OPM”) initially reviewed the applications and determined who met the minimum qualifications. It prepared a “Merit Promotion Certificate of Eligibles, ” and forwarded the list of candidates to NRCS with instructions that any person on the list could be selected. No. NRCS employees were involved in this initial process. Both plaintiff's and Ketch's names were on the list, along with ten others. The selecting official does not have to recheck or verify the qualifications of the persons appearing on the Certificate of Eligibles.

         In conjunction with the administrative reorganization, NRCS sent out suggested procedures to be used in filling the BSS and other new positions, including convening a Qualifications Review Panel (“QRP”). The selecting official could use a QRP, instead of handling the selection process by himself if, “in collaboration with the Human Resources (HR) Specialist, ” he determined it was “needed to evaluate the best qualified applicants.” Doc. #44-16, p. 1. Factors to be considered in deciding if a QRP should be used included “the complexity and organizational level of the vacant position and the number of best qualified applicants, both competitive and/or non-competitive, received in response to the vacancy announcement.” Id. at p. 2.[5] If a QRP was used, the selecting official, “in consultation with the HR Specialist” designated subject matter experts to serve as panel members. Doc. #44-16, p. 2. The panel, which would have “expert knowledge about what it takes to do the job, ” would determine which applicants were most qualified and should “advance to interview.” Doc. #44-15, p. 1. According to the suggested procedures, the SME panel should “compare applicant resumes and supporting materials to the skills and abilities in the assessment questions tool.” Id.

         Oklahoma Assistant State Conservationist for Management and Strategy (“OASTC (M&S)”) Jamey Wood was the selection official for the BSS position in Oklahoma. He wanted to hire someone who “had exceptional interpersonal skills, who could work with a wide and diverse number of people and handle a large and complex workload under stressful conditions, a quick learner and someone with administrative skills and effective problem solving skills.” Doc. #44, p. 18, ¶ 13. The position description listed these skills as among those required for the job. See Doc. #44-11, p. 4.

         Wood decided to interview all candidates rather than use a Qualifications Review Panel because the number of eligible applicants for the Oklahoma BSS position - 12 -- was manageable.[6] The panel was designed to be used when the “applicant pool was too large or diverse for the selecting official to evaluate.” Doc. #44-6, p. 3, ¶15. While he did not use a QRP, Wood did use an interview panel.[7] After consulting with the State Conservationist, Gary O'Neill, [8] he selected Bill Porter, who had been the acting Oklahoma State Conservationist, and Steve Glasgow, who was the State Resource Conservationist, to serve on the panel. All panel members had some prior contact with both plaintiff and Ketch.

         Wood divided the job selection process into three categories: interviews, resume reviews and references. All eligible candidates were interviewed either in person or by phone. Both plaintiff and Ketch were interviewed in person. Questions were divided among the panel members, who asked the same questions of each candidate. Each panel member then rated the candidate's response, using a score of 1, 3 or 5, with 5 being the highest rating. The panel members then compiled a table of their scores. Wood totaled the raw scores of all three panel members from the interviews. Ketch scored the highest with 97 total points; Kinzie was next, with 93 points. Wood then converted the scores to a 5-point scale. Both Kinzie and Ketch received 5 points.

         Next Wood reviewed the candidates' resumes, using a ranking of low, medium and high. In ranking the resumes, Wood considered eight factors or skills he was looking for in a BSS. These were essentially the same skills mentioned earlier which Wood was seeking in the applicants for the BSS position - a problem solver, a team leader, someone who could handle a large workload under pressure, an effective communicator who could work well with diverse individuals and a quick learner who could adapt to change. See Doc. Nos. 44-25; 44-26. Ketch's score was a H-, which converted to a 4.5 on a 5-point scale. Kinzie's was a M, which converted to a 3.5.[9]

         The last step in the selection process was consideration of candidates' references.[10] The job announcement did not request references and Kinzie did not list any, although Ketch did. Woods testified that he tried to “get as many commonalities between candidates and references as [he] could.” Doc. #44-6, p. 5, ¶23. He stated that “[g]iven the size of our organization, it would have been difficult to have found manager references that did not have some connection or contact with one or more candidates.” Id. at ¶24. Wood acknowledged that he did not contact plaintiff's current direct supervisor, Janette Jensen, because he had worked with her and did not respect her “opinions, practices or the way she did business.” Doc. #44-6, p.6, at ¶25.[11] He did, though, contact one of Kinzie's former supervisors, Renee Gardner, who was not listed by Ketch, and another resource conservationist, Melanie Oliver, whom Ketch also did not list but who had worked with both Kinzie and Ketch. Using the same scoring method as before, Ketch received a reference score of 5.0, while Kenzie received a score of 3.5.

         When the scores were tallied, Ketch had the top score of 14.5 points and Kinzie had the second highest score of 12 points. Wood selected Ketch to be the BBS based on his score.

         Kinzie received an annual performance appraisal. The rating year for most NRCS employees is the fiscal year, October 1 through September 30 of the next calendar year. Plaintiff was rated on three critical elements: (1) civil rights, EEO, and diversity and inclusion; (2) mission results and (3) customer service.[12] The possible ratings, from high to low, were: exceeds fully successful, meets fully successful, and does not meet fully successful. The combined element ratings then determined Kinzie's summary rating, of which there were five possibilities. From highest to lowest they were: outstanding, superior, fully successful, marginal and unacceptable.

         The employee's direct supervisor usually prepares his or her performance appraisal. The employee's second line supervisor is the reviewing official for the appraisal. The appraisal is not official until the reviewing official approves or “sign[s] off on the rater's evaluation.” Doc. #44, p. 24, ¶31.

         From 2013 through 2015, Janette Jenson, Kinzie's first line supervisor, prepared his appraisals and Oklahoma State Conservationist O'Neill was his reviewing official. O'Neill, as manager of the Oklahoma NRCS, either rated or reviewed approximately one third of the NCRS's Oklahoma employees in 2015.

         The reviewing official has multiple responsibilities. Among them are:

a. Establishing a performance culture that supports a high-performing organization through management of individual and organization performance.
b. Ensuring that rating officials carry out their performance management responsibilities and evaluate the rating officials to ensure accountability for performance management.
c. Reviewing and approving the performance plans and ratings of his or her subordinate rating officials to ensure consistency, fairness, objectivity and completeness and ensuring that plans reflect the overall needs and goals of the agency.

Doc. #44, p. 24, ¶ 30.

         The reviewing official may change an employee's rating after discussing it with the rating official if the change is “consistent with the performance and the employee's accomplishment.” Doc. #44-31, p. 2, ¶7. NRCS policy governing performance appraisals provides that the “ratings may not be communicated to the employees before they are approved by the final reviewer.” Doc. #44-36, p. 14.[13] However, around October 1, 2015, before O'Neill reviewed and signed off on Kinzie's performance review, Jensen met with Kinzie and told him he would receive a summary rating of superior for his 2015 performance appraisal. Jensen later proposed that Kinzie receive an “exceeds fully successful” rating for both the mission results and customer service elements. She recommended he receive a “meets fully successful” rating for the remaining element (civil rights, EEO and diversity and inclusion). The combination of two “exceeds fully successful” and one “meets fully successful” ratings would have resulted in a summary rating of “superior” for the 2015 rating year.

         When O'Neill reviewed Kinzie's proposed 2015 performance appraisal, he was aware that Kinzie had filed an administrative EEO age discrimination complaint challenging Ketch's selection for the BSS position. O'Neill testified that he had concerns about the “exceeds fully successful” rating Jensen had given Kinzie for the customer service element. He stated that during the rating year he received numerous complaints from NRC field supervisors and employees about Kinzie's handling of problems that arose with respect to three buildings which NRCS ...

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