THOMAS J. WHELAN, District Judge.
Pending before the Court is Defendant Kristen Nielsen, Secretary of the Department of Homeland Security (Customs and Border Protection)'s motion for summary judgment. Plaintiff Richard R. Valentine opposes the motion.
The Court decides the matter on the papers submitted and without oral argument.
On July 14, 2008, Plaintiff Richard R. Valentine began a two-year internship with U.S. Customs and Border Protection ("CBP") as an Agricultural Specialist under the Federal Career Intern Program ("FCIP"). (Compl. [Doc. 1] ¶ 5; Def's Ex. 2 [Doc. 37-9] p. MSJ_051.
Valentine was assigned to work at the Port of Otay Mesa Cargo Facility. His job duties included inspecting agricultural shipments entering the United States for pests, diseases, and contraband.
On March 14, 2010, Agricultural Specialist Paul Balistocky instructed Valentine to inspect a truckload of fruits and vegetables arriving from Mexico. (Compl. ¶ 7; Def's Ex. 11 [37-16] p. MSJ_107.) From a service counter approximately 50 feet away, Valentine's second-line supervisor, Branch Chief Rosalinda Maizuss, watched him conduct the inspection. (Def's Ex. 9a [37-14
When Valentine arrived at the dock, the truck's driver was standing next to approximately 10 different samples of vegetables and fruits the driver had chosen to be inspected. (Def's Ex 1a [Doc. 37-5] pp. MSJ_009-010; Def's Ex. 9a p. MSJ_094.) Valentine spoke to the driver, looked down at the samples, looked back at the paperwork in his hand and then walked away. (Def's Ex. 9a p. MSJ_094.) Valentine's inspection of these fruits and vegetables took two to three minutes, during which he did not physically inspect any of the commodities. (Def's Ex. 1a p. MSJ_11; Def's Ex. 10 [Doc. 37-16] p. MSJ_105.) Valentine claims he then went inside the truck's unlit trailer to inspect corn that was stacked in wooden crates. (Def's Ex. 1a pp. MSJ_011-012.) He did not remove any of the corn from the crates, but using a flashlight, claims he inspected the corn by "manipulating" it through the crate's wooden slats. (Id. pp. MSJ_011-012.) Valentine's inspection of the corn took about one to two minutes. (Id. p. MSJ_012.)
The next day, Chief Maizuss asked Valentine to write a memo justifying the visual inspection of the commodities on the dock. (Def's Ex. 9a p. MSJ_094.) Valentine wrote, in relevant part:
(Def's Ex. 11 p. MSJ_107.) Unsatisfied with Valentine's justification for his visual inspection, Chief Maizuss then asked him to respond in writing to six questions regarding the inspection. (Def's Ex. 13 [Doc. 37-16] p. MSJ_111.) Valentine responded on or about March 20. (Def's Ex. 12 [Doc. 37-16] p. MSJ_109.)
The March 14 incident was not the first time Chief Maizuss witnessed Valentine fail to follow inspection procedures. On July 22, 2009, Chief Maizuss verbally counseled Valentine for "failing to perform intensive exams on a total of 8 ATU targeted manifests. . . ." (Def's Ex. 9a p. MSJ_099.)
On or about June 14, 2010, Chief Maizuss prepared a 22-month Proficiency Certification Report ("PCR") for Valentine, in which she recommended that Valentine not be converted to a career employee at the end of his internship. (Def's Ex. 15 [37-18] p. MSJ_123.) According to the PCR,
(Id.) Port Director Rosa Hernandez concurred with Chief Maizuss's PCR, and forwarded it to the Director of Field Operations, Paul Morris. On July 12, 2010, two days before the end of Valentine's internship, Morris sent Valentine a letter terminating his employment. (Def's Ex. 16 [Doc 37-18] p. MSJ_125.) In support of the decision, Morris cited Chief Maizuss's observation that Valentine violated CBP policy during his March 14, 2010 inspection. (Id.) The letter also noted that Valentine had "been re-trained on several elements of your performance, and still fail to follow correct procedures," and further stated that he had been untruthful in responding to some of Chief Maizuss's inquiries regarding the inspection. (Id.)
On July 20, 2010, Valentine filed a complaint with the Merit Systems Protection Board ("MSPB"). (Def's Ex. 14 [Doc. 37-17].) His complaint disputed that the March 14 inspection violated CBP policy, and he asserted that he passed all of the training elements (some after retraining). (Id. p. MSJ_117.)
Eventually Valentine retained counsel, and on or about August 15, 2010, he filed an Individual Complaint of Employment Discrimination. (Def's Ex. 17 [Doc. 37-18].) Valentine alleged his termination was the result of discrimination based on his race, color and national origin, and retaliation. (Id. p. MSJ_129.) On or about September 13, 2013, the EEO Administrative Judge granted the CBP's summary-judgment motion. (Def's Ex. 20c [Doc. 37-31] p. MSJ_234.)
On September 19, 2016, Valentine filed this lawsuit alleging causes of action for (1) discrimination based on race, color, ancestry and/or national origin, and (2) reprisal for prior EEO activity. (See Compl.) On December 5, 2017, this Court granted Valentine's motion to dismiss the second cause of action for reprisal for prior EEO activity. (See Dismissal Order [Doc. 21].) Defendant now moves for summary judgment on the remaining discrimination cause of action.
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact.
If the moving party meets this initial burden, the nonmoving party cannot avoid summary judgment merely by demonstrating "that there is some metaphysical doubt as to the material facts."
The Supreme Court has established a three-stage burden shifting test to analyze claims of employment discrimination under Title VII.
In order to establish his prima facie case of discrimination, Valentine needs to show that: (1) he suffered an adverse employment action; (2) he was performing his job in a satisfactory manner; and (3) his termination occurred under circumstances giving rise to an inference of race discrimination.
To establish that he suffered an adverse employment action, Valentine must demonstrate that he suffered a "materially adverse change in the terms or conditions of employment because of the employer's actions."
Here, Valentine's ability to establish that he suffered an adverse employment action depends on whether the CBP's decision not to convert his FCIP internship to a career appointment constitutes a materially adverse change in the terms or conditions of his employment. For at least three reasons, the Court finds it does not.
First, the Executive Order creating the FCIP and the federal regulation implementing the program state that "service as a career intern confers no rights to further Federal employment in either the competitive or excepted service upon expiration of the internship period." Executive Order No. 13,162; 5 C.F.R. § 213.302(o)(6)(2006). Subsection 4 of the Executive Order also states that "[c]ompetitive civil service status may be granted to a Career Intern." Executive Order No. 13,162 (emphasis added). The implementing regulation then reiterates:
5 C.F.R. § 213.3202(o)(7)(2006). These regulations support a finding that the decision not to convert Valentine's internship did not constitute an adverse employment action.
Second, relying on these regulations, courts have held that an agency's decision not to convert an FCIP appointee to a permanent position does not qualify as an adverse employment action.
Third, Valentine's signed employment agreement explicitly limited his appointment to a two-year period. (Def's Ex. 2 p. MSJ_051.) The agreement further stated:
(Id.) In short, the employment agreement, like the Executive Order and the Federal regulations governing the FCIP, reiterated that Valentine's service as an intern gave him "no guarantee or entitlement to conversion." (Id.) Accordingly, the CBP's decision not to convert Valentine to a career appointment, and instead to terminate him, did not qualify as a decision that adversely affects his employment conditions.
Because Valentine cannot establish the first element of his prima facie case, Defendant is entitled to summary judgment.
Defendant argues that Valentine cannot establish that he was performing his job in a satisfactory manner based on Chief Maizuss's observations of his inspection on March 14, 2010. In his opposition, Valentine attempts to establish that he was performing his job satisfactorily by (1) asserting Defendant applied the wrong standard in evaluating his inspection and (2) disputing some of Chief Maizuss's criticisms of the inspection. The Court is unpersuaded by Valentine's argument.
First, Valentine's contention that Maizuss used the wrong standard to judge his inspection is unavailing for at least two reasons. As Defendant points out in its Reply, Valentine has not designated an expert to testify regarding the proper standard governing his inspection, nor is there any indication Valentine possess the experience, training, and education needed to offer an opinion on the issue. (Reply [Doc. 40] 8:1-5.) In contrast, Defendant has designated Leslie Gomez-Montez as a non-retained expert to establish the proper procedures and standard that applied to Valentine's March 14 inspection. (See P&A [Doc. 37-1] p. 4, n.27; Gomez-Montez Dec. [Doc. 37-2].) Gomez-Montez has been employed with CBP since 2002, and is currently an Agriculture Operations Manager in the San Diego Field Office. (Gomez-Montez Dec. ¶ 2.) Since September 2009, she has been an Agriculture Operations Manager, which is responsible for oversight of the CBP agriculture quarantine inspection (AQI) program at the ports of entry within the San Diego Field office area of responsibility. (Id.) Her duties include providing advice to the San Diego Field Office ports of entry on the inspection of, among other things, commercial shipments. In short, unlike Valentine, Defendant has provided support for its contention regarding the standard that governed Valentine's March 14 inspection.
Moreover, notwithstanding Valentine's argument, the evidence establishes that Defendant and Valentine used the same standard to evaluate Valentine's visual inspection of the commodities on the dock. Valentine contends that his visual inspection was appropriate because all of the commodities were "low risk" under the "USDA NARP program." (Def's Ex. 11 p. MSJ_107; Pl's Ex. 1 [Doc. 39-3] p. 288.) Defendant's expert, Gomez-Montez, also used NARP (the National Agriculture Release Program) to evaluate whether Valentine's visual-only inspection of the commodities on the dock was appropriate. (Gomez-Montez Dec. ¶¶ 4-7, citing Def's Ex. 6 [Doc. 37-12] and Def's Ex. 7 [Doc. 37-13].) For this additional reason, Valentine's contention that Defendant uses the wrong standard to evaluate his inspection lacks merit.
Second, contrary to Valentine's argument, the undisputed evidence confirms Valentine did not conduct a proper inspection on March 14, 2010. Although he disputes some of Chief Maizuss's observations of the inspection, he does not dispute failing to physically inspect any of the fruits and vegetables on the dock. (Def's Ex. 1a pp. MSJ_009-011; Def's Ex. 10 p. MSJ_105.) Instead, Valentine attempts to justify his visual-only inspection by asserting that the commodities were all "low risk." (Def's Ex. 11 p. MSJ_107.) The evidence does not support Valentine's assertion.
As established by the manifest, the commodities on the dock included California chili peppers, habanero chili peppers, jalapeno chili peppers, pasilla chili peppers, sweet corn, cactus leaf, and husk tomatoes. (Def's Ex. 5 [Doc. 37-12] pp. MSJ_068-069.) According to the NARP Guidelines, none of these commodities were considered "low risk" and, therefore, a sample of each had to be physically inspected. (Gomez-Montez Dec. ¶¶ 4-7, citing Def's Exs. 6, 7.) Moreover, because these commodities were commingled with commodities that otherwise would have been considered "low risk" (i.e., the Roma tomatoes, cucumbers, bell peppers, chayotes and squash), the NARP Guidelines required Valentine to also inspect a sample of these commodities. (Id. ¶¶ 4, 5.) In short, under NARP, Valentine was required to conduct a physical inspection of a sample of all the commodities on dock. This required Valentine to touch and examine samples for signs of pests and disease, and required him to cut open samples of the chili peppers that were not "low risk." (Id. ¶ 7.) Valentine admittedly did not conduct such an inspection and, therefore, there is no dispute he failed to conduct an appropriate inspection on March 14, 2010.
Also undisputed is that the March 14 inspection was not the first time Valentine failed to follow inspection procedures. On July 22, 2009, Chief Maizuss verbally counseled Valentine for "failing to perform intensive exams on a total of 8 ATU targeted manifests. . . ." (Def's Ex. 9a p. MSJ_099.) Based on these undisputed facts, the Court finds Valentine has failed to establish that he was satisfactorily performing his job duties. For this additional reason, Defendant is entitled to summary judgment.
To establish his prima facie case, Valentine also must present specific and substantial evidence that gives rise to an inference of intentional discrimination.
(Opp. [Doc. 39] 19:22-20:7.) The problem with this argument is that it is not supported by the evidence—i.e., Chief Mazuss's deposition transcript—cited by Valentine.
According to the deposition transcript, because Chief Maizuss was a brand new chief, after witnessing the four specialists fail to conduct intensive exams and follow protocol, she asked her boss, "Mr. Fanning," how to proceed. (Pl's Ex 24 [Doc. 39-3] p. 65:8-24, p. 66:15-18
Moreover, in a portion of the transcript Valentine omits from his opposition, Chief Maizuss confirmed that she treated the four specialists the same:
(Def's Reply Ex. 22 [Doc. 40-2] MSJ_247.)
Because Valentine has not presented substantial and specific evidence giving rise to an inference of intentional discrimination, he cannot establish an inference of intentional discrimination. For this additional reason, Defendant is entitled to summary judgment.
For the reasons discussed above, the Court finds Valentine cannot establish any of the three elements of his prima facie case. The Court, therefore,