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Rowe v. Jewell

United States District Court, E.D. Louisiana

February 13, 2015

CASEY ROWE,
v.
SALLY JEWELL, SECRETARY, U.S. DEPARTMENT OF INTERIOR, BUREAU OF OCEAN ENERGY MANAGEMENT

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For Casey Rowe, Plaintiff: John-Michael Lawrence, LEAD ATTORNEY, John-Michael Lawrence, LLC, New Orleans, LA.

For Department of Interior, Sally Jewell, Secretary - Bureau of Ocean Energy Management, Defendant: Sandra Ema Gutierrez, LEAD ATTORNEY, U.S. Attorney's Office (New Orleans), New Orleans, LA.

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ORDER AND REASONS ON MOTIONS

JOSEPH C. WILKINSON, JR., UNITED STATES MAGISTRATE JUDGE.

In this employment discrimination action, plaintiff, Casey Rowe, alleges that his employer, Sally Jewell, Secretary, U.S. Department of Interior, Bureau of Ocean Energy Management (the " Bureau" ), discriminated against him based on his gender when the Bureau failed to select him for one of two job vacancies in March 2012; retaliated against him for engaging in protected activity by giving him a " fully successful," rather than a " superior" or " exceptional," performance rating for 2012; and created a retaliatory hostile work environment, all in violation of Title VII. 42 U.S.C. § 2000e et seq. Complaint, Record Doc. No. 1. This matter was referred to a United States Magistrate Judge for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 15.

The Bureau filed a motion for summary judgment supported by several declarations under penalty of perjury, a deposition transcript and verified documentary exhibits. Record Doc. No. 37. Pretermitting any discussion of whether plaintiff can establish a prima facie case of gender discrimination, the Bureau argues that Rowe cannot rebut its proffered legitimate, non-discriminatory reasons for not selecting him for the vacancy because the evidence does not support his assertion that he was clearly better qualified than the successful applicants. As to his claim of a retaliatory hostile environment, defendant contends that Rowe's evidence fails to create any disputed fact issues on two of the four prongs of a prima facie case. Regarding plaintiff's contention that his supervisors retaliated against him by giving him a " fully successful" performance evaluation, the Bureau argues that he cannot establish the " causal link" element of a prima facie case or, alternatively, if he can establish a prima facie case, the evidence does not establish a material fact issue as to " but for" causation.

Rowe also filed his own motion for summary judgment, arguing that he is entitled to summary judgment on all of his claims. Record Doc. No. 31. His motion is supported by a memorandum that far exceeds the court's page limitations, without having sought leave to file excessive pages, and by an oppressive collection of extremely voluminous exhibits, many of which are duplicative and irrelevant. Plaintiff's exhibits include numerous entire deposition transcripts and transcripts of sworn statements taken by an investigator during the investigation of plaintiff's Equal Employment Opportunity (" EEO" ) complaints, when only portions are relevant or helpful; one declaration under penalty of perjury; and a paper mountain of largely unverified, miscellaneous and extraneous documents. However, the Bureau does not dispute the authenticity of any of Rowe's exhibits. Despite the excessiveness of plaintiff's submissions, the court has laboriously reviewed all the materials and has considered them authentic and as evidence to the extent they are relevant and otherwise admissible.

After the motions for summary judgment were filed, the parties timely filed a joint statement of undisputed facts. Record Doc. Nos. 45, 46. Rowe and the Bureau each filed a timely memorandum in opposition to the other's summary judgment motion. Record Doc. Nos. 47, 48. Plaintiff received leave to file additional exhibits, an amended statement of undisputed facts and an amended memorandum in support of his motion. Record Doc. Nos. 38, 44, 49, 50, 51, 52. The court granted the Bureau's motion for relief from its obligation under Local Rule 56.2 to respond to Rowe's extremely lengthy

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statement of undisputed facts. The court therefore assumes that defendant disputes any facts in plaintiff's amended statement of uncontested facts that were not incorporated into the parties' joint statement of undisputed facts. Record Doc. Nos. 39, 51.

Having considered the complaint, the record, the submissions of the parties and the applicable law, and for the following reasons, IT IS ORDERED that defendant's motion for summary judgment is GRANTED and plaintiff's motion is DENIED.

I. STANDARDS OF REVIEW

" A party may move for summary judgment, identifying each claim or defense--or the part of each claim or defense--on which summary judgment is sought. The court shall grant summary judgment 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). Rule 56, as revised effective December 1, 2010, establishes new procedures for supporting factual positions:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c).

Thus, the moving party bears the initial burden of identifying those materials in the record that it believes demonstrate the absence of a genuinely disputed material fact, but it is not required to negate elements of the nonmoving party's case. Capitol Indem. Corp. v. United States, 452 F.3d 428, 430 (5th Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). " [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to [a particular material] fact." Advisory Committee Notes, at 261.

A fact is " material" if its resolution in favor of one party might affect the outcome of the action under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine dispute of material fact exists if a rational trier of fact could not find for the nonmoving party based on the evidence presented. Nat'l Ass'n of Gov't Employees v. City Pub. Serv. Bd., 40 F.3d 698, 712 (5th Cir. 1994).

To withstand a properly supported motion, the nonmoving party who bears the burden of proof at trial must cite to particular

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evidence in the record to support the essential elements of its claim. Id. (citing Celotex, 477 U.S. at 321-23); accord U.S. ex rel. Patton v. Shaw Servs., L.L.C., 418 F.App'x 366, 371 (5th Cir. 2011). " [A] complete failure of proof concerning an essential element of the nonmoving party's case renders all other facts immaterial." Celotex, 477 U.S. at 323; accord U.S. ex rel. Patton, 418 F.App'x at 371.

" Factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that an actual controversy exists." Edwards v. Your Credit, Inc., 148 F.3d 427, 432 (5th Cir. 1998); accord Murray v. Earle, 405 F.3d 278, 284 (5th Cir. 2005). " We do not, however, in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts." Badon v. R J R Nabisco Inc., 224 F.3d 382, 394 (5th Cir. 2000) (quotation omitted) (emphasis in original). " Conclusory allegations unsupported by specific facts . . . will not prevent the award of summary judgment; 'the plaintiff [can]not rest on his allegations . . . to get to a jury without any " significant probative evidence tending to support the complaint." '" Nat'l Ass'n of Gov't Employees, 40 F.3d at 713 (quoting Anderson, 477 U.S. at 249).

" Moreover, the nonmoving party's burden is not affected by the type of case; summary judgment is appropriate in any case where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (quotation omitted) (emphasis in original); accord Duron v. Albertson's LLC, 560 F.3d 288, 291 (5th Cir. 2009).

II. THE UNDISPUTED MATERIAL FACTS

The following material facts are accepted as undisputed, solely for purposes of the pending motions. The facts are drawn from the parties' joint statement of undisputed facts and the deposition testimony, sworn declarations and sworn oral statements in the record. The oral statements were taken by the EEO investigator and are called " affidavits" in the record of the investigation.

The relevant events in the instant case began with the announcement in December 2011 of two vacancies for a Supervisory Environmental Specialist at the GS-13 level in the Bureau's Environmental Assessment Section, Office of Environment. The Environmental Assessment Section of the Office of Environment was going to be divided into two units in March 2012, and the Bureau needed two GS-13 Supervisory Environmental Specialists to head those units. Each supervisor would lead a staff of professionals with expertise in application of the National Environmental Policy Act, the Coastal Zone Management Act and other laws and regulations to help the Bureau manage the exploration and development of the nation's offshore energy resources in a sound environmental manner. Rowe, Tershara Matthews and Lissa Lyncker, who were all employees of the Environmental Assessment Section, applied for the job openings.

After the application period closed, the Bureau's Human Resources Office sent lists of qualified candidates and each qualified candidate's application to Gary Goeke, the Chief of the Environmental Assessment Section, who was the selecting official for the positions. Rowe was already a GS-13 and thus was listed on the " non-competitive certificate" of candidates. Matthews and Lyncker were both GS-12

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employees and were on the " merit promotion certificate."

Rowe has a master's degree in biology. When he applied to be a Supervisory Environmental Specialist in December 2011, he had been in his then-current position as a GS-13 Biologist for the Bureau since 2007, with 21 years of total experience working for various federal agencies. Goeke had been plaintiff's direct supervisor since January 2009, had previously selected Rowe for his GS-13 biologist position and had consistently given plaintiff " superior" and one " exceptional" (the highest possible) performance ratings in prior years. Robert Martinson had supervised plaintiff before Goeke.

Goeke supervised Matthews when she first came to work at the Bureau in December 2008, after which Martinson supervised her until he left the local office in March 2011. Lyncker began working at the Bureau in 2010 and was also supervised by Martinson until March 2011, and then by Goeke.

Goeke reports to Joseph Christopher, who is Program Manager for the Bureau and serves as Regional Supervisor of the Office of Environment for the Gulf of Mexico Outer Continental Shelf Region. Christopher reviewed and approved Goeke's selections of Matthews and Lyncker for the two Supervisory Environmental Specialist vacancies in March 2012. In February 2012, Barry Obiol became the Deputy Regional Supervisor of the Office of Environment and also began to supervise Goeke. However, Christopher was still considered Goeke's first-line supervisor. Christopher in turn reports to John Rodi, the Bureau's Regional Director for the Gulf of Mexico Outer Continental Shelf Region.

In mid-March 2012, Goeke selected Matthews and Lyncker for the two Supervisory Environmental Specialist positions. The Supervisory Environmental Specialist positions entailed both supervisory and non-supervisory duties. Major supervisory duties included overseeing development of so-called " NEPA documents" (NEPA is an acronym for the National Environmental Policy Act), coordinating input from a multi-disciplinary team of scientists involved with environmental policy issues and analysis, and being responsible for managing and coordinating the activities of professional and technical personnel forming a multi-disciplinary core staff. Although Rowe had prior experience as a lead coordinator of several NEPA documents and more years of experience with the Bureau and other federal agencies than Lyncker or Matthews, Goeke selected Matthews to supervise the coastal zone management unit and Lyncker to supervise the other unit. The selections resulted in promotions to GS-13 for both women.

Lyncker has an undergraduate and a master's degree in biological sciences with an emphasis in estuarine and coastal ecology. Before her selection as a Supervisory Environmental Specialist, she was an Environmental Protection Specialist at the Bureau and had worked as a Subject Matter Expert for Environmental Impact Statements (also called NEPA documents) prepared for offshore lease sales. She was the lead coordinator on one Environmental Impact Statement before her selection and was still leading that document when she was chosen for the vacancy at issue. Prior to working at the Bureau, she was a contract employee working as an environmental manager for the United States Army Corps of Engineers and before that she was an environmental consultant preparing Environmental Impact Statements for an engineering firm.

When Matthews was selected for the unit supervisor position, she had a master's degree in health administration and a bachelor's degree in biology. According to

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her resumé, she completed a doctorate in coastal sciences in August 2012, about five months after she was selected for the promotion. Before her selection, she worked as a Coastal Zone Management Coordinator for the Bureau, preparing consistency determinations under the Coastal Zone Management Act.

Goeke announced the selection of Matthews as a Supervisory Environmental Specialist on March 16 and the selection of Lyncker on March 21, 2012. As unit supervisors, Matthews and Lyncker both reported to Goeke. Lyncker became Rowe's first-line supervisor on March 25, 2012.

The units headed by Matthews and Lyncker were primarily responsible for coordinating the preparation of Environmental Impact Statements for Outer Continental Shelf lease sales and special environmental assessment projects relating to oil and gas exploration and development. Preparation of an Environmental Impact Statement in accordance with the National Environmental Policy Act is a highly complex task that can take as much as two to three years to complete and involves meeting hundreds of deadlines so that the sale will occur as scheduled. Environmental Impact Statements are prepared almost completely in-house by the Office of Environment's staff of Subject Matter Experts, most of whom have advanced degrees, including many doctorates, and expertise in archaeology, air and water quality, economics, geology, physical oceanography, marine biology, coastal biology, ornithology and many other disciplines.

At the " kick-off" of a new Environmental Impact Statement, Subject Matter Experts are formed into a team of about 40 people, led by a non-supervisory Environmental Impact Statement Coordinator and a Co-Coordinator, or two, who work for Goeke. The Coordinator leads the project from start to finish, establishing all critical action dates, ensuring that actions are accomplished on time and that products are of high quality.

Goeke selected Matthews and Lyncker for the unit supervisor positions after interviewing all qualified applicants whose names the Human Resources Office had submitted to him. He used a standard list of 15 questions and took notes during the interviews. He testified that he believed that Matthews and Lyncker each had a very good education, had demonstrated good leadership qualities while they worked at the Bureau and had shown a commitment to work and to whatever was necessary to get the job done. Goeke testified that he selected both candidates based on several factors, including their strong work ethics, strong team leadership qualities, strengths as employees in their previous positions and interview performances.

Lyncker and Matthews each had worked previously as a temporary acting supervisor, which Rowe had not. However, Goeke testified that whether a candidate had past experience as an acting supervisor was not a factor in his decision. He also stated that Rowe's past experience as a lead coordinator on several Environmental Impact Statements was not necessarily important in his selection process. Goeke testified that Rowe did not have team leadership experience.

Goeke destroyed all of his interview notes after Lyncker and Matthews accepted the positions. He testified that the notes were confidential and that it was his standard practice to destroy them, a practice that had never before been challenged.

Christopher similarly testified that whether Rowe had prepared more Environmental Impact Statements than other applicants would not have been important in the selection process. Christopher stated that experience is important, but is not the only factor considered in selecting someone for a leadership position.

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Christopher knew that Rowe was on the list of qualified applicants for a Supervisory Environmental Specialist position, but Goeke did not discuss plaintiff's candidacy with Christopher before or after Goeke selected Lyncker and Matthews. Christopher testified that, when Goeke reported his selections to Christopher, Goeke said he was confident that Lyncker and Matthews would do well as leaders, based on the work they had previously done. Christopher had no reason to object to Goeke's selections and he signed off on them.

Christopher was not surprised that Goeke did not select Rowe because Christopher had firsthand knowledge of Rowe's lack of supervisory skills. While Christopher always considered plaintiff a good employee, Christopher believed that Rowe, during his stint as lead coordinator on the Atlantic G & G [Geological and Geophysical] Programmatic Environmental Impact Statement, had demonstrated that he was not a competent leader and would not make a good manager or supervisor.

Goeke, Christopher and Martinson testified about problems they had with Rowe while he led the Atlantic G & G Environmental Impact Statement in 2010 and early 2011. Plaintiff's teammates repeatedly complained to these three supervisors that Rowe was not sharing information. Christopher received numerous complaints from team members about what he called Rowe's " ineffective communication and inability to work independently as a lead coordinator," and he relayed those complaints to Goeke. When Goeke expressed those concerns to Rowe in January 2011, plaintiff reacted by sending to the team members several dozen e-mails that they had not seen before. According to Goeke, Rowe would not stop sending the e-mails when Goeke asked him to stop. Christopher, who received the e-mail " dump" from plaintiff, immediately held a meeting with him to discuss his " inappropriate reaction to the objective criticism." Rowe was removed from the Atlantic G & G project soon thereafter because there was a lot of dissension on the team. Christopher deposition, Record Doc. No. 31-6 at pp. 23-24; Defendant's Exh. 2, Christopher declaration, Record Doc. No. 37-4, at ¶ ¶ 9-12; Goeke deposition, Record Doc. No. 31-4 at pp. 45-46; Martinson deposition, Record Doc. No. 31-26 at p. 19. Christopher told Martinson that Rowe's removal from the project would not affect plaintiff's performance rating or promotion potential. Id. Rowe received a " superior" performance evaluation from Goeke for the fiscal year October 1, 2010 to September 30, 2011. Record Doc. No. 31-27 at pp. 9-15.

Goeke testified that, after Rowe was removed from the Atlantic G & G team, Goeke and Rodi, the Regional Director, discussed what plaintiff was going to work on if he did not work as a Coordinator. Goeke said that the issue came up because his staff of GS-13 employees consisted only of Environmental Impact Statement Coordinators. Rodi and Goeke discussed whether Goeke could have a GS-13 on his staff who is not an Environmental Impact Statement Coordinator. Goeke testified that the conversation did not concern a proposed action aimed at any individual, but was a discussion of a general policy issue. Goeke deposition, Record Doc. No. 31-4 at pp. 63-64.

In early 2012, Rowe was assigned as the Lead NEPA Coordinator on a Supplemental Environmental Impact Statement entitled WPA/CPA 233/231. The team led by Rowe included Goeke, Matthews, Lyncker, Brian Cameron, Ken Ashworth, Debbie Miller and Pat Adkins. During the summer of 2012, Goeke, Matthews and Lyncker, the three supervisors on the project,[1]

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saw that the document was falling behind schedule and that the team was having difficulty meeting its milestones.

Lyncker and Matthews believed that Rowe was not communicating adequately with the team about the assignments or project progress and was not fully cooperating with all team members, especially not with Lyncker. Goeke thought that Rowe backed off from his responsibilities as lead coordinator after Lyncker was appointed unit supervisor. Between March 25, 2012, when Lyncker was promoted, and September 2012, she observed that Rowe seemed angry about her selection for the position and about being under her direct supervision. Lyncker noticed that Rowe would not talk to her orally or by e-mail, did not copy her on e-mails that he sent to others containing information she needed to know, submitted his leave requests to Goeke rather than to her, would not even look at her and communicated primarily with Goeke. Goeke became aware that Rowe was not including Lyncker on e-mails that plaintiff sent to headquarters or the Office of the Solicitor, about which she, as his first-line supervisor, needed to be informed.

It appeared to Lyncker, Matthews and Goeke during this time period that Rowe was unaware of how far behind he was in coordinating the supplemental Environmental Impact Statement. Lyncker prepared " to do" lists to help him get the document back on schedule. At a managers' meeting, Matthews raised the possibility of pulling Rowe off the project because he was not performing adequately and was missing deadlines, and the team needed to get the document done on time. Matthews deposition, Record Doc. No. 31-7 at pp. 34-36, 42. However, he was not removed from the project.

Rowe contacted a counselor in the Bureau's EEO office on April 3, 2012. On May 15, 2012, he filed a formal complaint of gender discrimination, alleging that he had not been selected for the Supervisory Environmental Specialist position despite being much better ...


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