United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 110], DENYING
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 113],
AND DISMISSING THE CASE WITH PREJUDICE
M. KEELEY, UNITED STATES DISTRICT JUDGE.
case arises under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., and the Back Pay
Act, 5 U.S.C. § 5596. Pending before the Court are cross
motions for summary judgment filed by the plaintiff, Robert
Petrovsky (“Petrovsky”), and the defendant,
United States Attorney General, Department of Justice, Bureau
of Prisons (“BOP”). For the reasons that follow,
the Court DENIES Petrovsky's motion
(Dkt. No. 113) and GRANTS the BOP's
motion (Dkt. No. 110).
is an employee of the Federal Bureau of Prisons at a Federal
Correctional Institute in Gilmer, West Virginia
(“FCI-Gilmer”). While a Lieutenant at FCI-Gilmer,
Petrovsky served as the designated representative for
co-worker Deborah Rankin (“Rankin”) during her
Equal Employment Opportunity Commission (“EEOC”)
grievance. Petrovsky alleges that, following his
representation of Rankin, he was subjected to “several
adverse employment actions which constituted
retaliation” (Dkt. No. 1 at 13). Specifically,
Petrovsky alleges that, beginning in October 2010, FCI-Gilmer
Warden Kuma Deboo (“Warden Deboo”) and Assistant
Warden William Odom (“AW Odom”) retaliated
against him for his involvement in Rankin's grievance
process. In his complaint, Petrovsky describes numerous
incidents of alleged retaliation.
first alleges that AW Odom retaliated against him by
“permitting” another FCI-Gilmer employee to
“verbally attack” him (Dkt. No. 1 at 4). On
October 21, 2010, Petrovsky, then a GS-11 Lieutenant, entered
the Warden's conference room for a scheduled meeting with
FCI-Gilmer staff and visitors, including AW Odom (Dkt. Nos.
111-1 at 11; 111-2 at 1). Before the meeting began,
Petrovsky's co-worker, Lieutenant Matthew Whinnery
(“Whinnery”), entered the room and began
questioning Petrovsky about an out-of-work event and certain
emails exchanged among FCI-Gilmer employees. Id.
argument apparently culminated with Whinnery referencing
Petrovsky's assistance to other employees regarding their
EEO complaints and grievances (Dkt. No. 111-2). After
Whinnery commented on Petrovsky's involvement in the
grievance process, but before Petrovsky could respond to that
comment, AW Odom intervened, stating “not here, that is
not the time nor place” for such a discussion (Dkt.
Nos. 111-1 at 11; 111-2 at 1). After the meeting, AW Odom
verbally reprimanded Whinnery for his behavior (Dkt. No.
111-1 at 36-36, 127).
Annual Performance Evaluation
next alleges that AW Odom retaliated against him by
“lowering” his annual evaluation rating, which
Petrovsky claims had been issued to him by his immediate
supervisor, Captain Vicky Dupuis (“Captain
Dupuis”) (Dkt. No. 1 at 5). Notably, employee
performance ratings are subject to BOP Program Statement
3000.03 (the “Program Statement”), which sets
forth a division of responsibilities regarding employee
evaluation (Dkt. No. 111-5).
Program Statement provides that the “Rating
Official” (here, Captain Dupuis) is an employee's
immediate supervisor and is responsible for
“maintaining the employee's performance log,
conducting progress reviews and completing the annual
performance rating in accordance with the procedures”
in the Program Statement. Id. The “Reviewing
Official” (here, AW Odom) is the Rating Official's
supervisor and is responsible for “assigning an overall
rating and approving or adjusting individual element
ratings.” Id. The Reviewing Official further
“determine[s] whether recommendations for outstanding
performance ratings will be forwarded to the approving
official.” Id. The “Approving
Official” (here, Warden Deboo) is responsible for
approving “outstanding” overall performance
ratings. If the Approving Official approves the outstanding
rating, the Rating Official must “also recommend the
granting of additional recognition in the form of a cash or
non-cash award or a quality step increase.”
to the Program Statement, Captain Dupuis completed
Petrovsky's performance evaluation for the employment
period October 2009 through September 2010. Captain Dupuis
assigned ratings on three elements of Petrovsky's
performance, marking one element as “Excellent”
and two as “Outstanding.” AW Odom reviewed the
evaluation and ultimately assigned Petrovsky an
“Excellent” overall performance rating.
Thereafter, Captain Dupuis amended one of her ratings,
changing the mark for “People/Workforce &
Communication/Teamwork” from “Outstanding”
to “Excellent, ” and initialed the change.
Petrovsky received the maximum number of points possible for
an overall rating of “Excellent” (Dkt. No.
also alleges that AW Odom retaliated against him by directing
Captain Dupuis to assign Petrovsky to the “evening
watch” (Dkt. No. 1 at 5). On November 5, 2010,
Petrovsky and the two other Lieutenants then-assigned to the
day shift were reassigned to the evening shift at AW
Odom's direction (Dkt. No. 111-15 at 213-14). Petrovsky
ultimately did not work the evening watch, however, because
he traded shifts with another Lieutenant to remain on day
watch (Dkt. Nos. 111-3 at 113, 111-6 at 168).
Demotion to Counselor
Petrovsky next asserts that his decision to apply for, and
accept, a GS-9 Counselor position constitutes a constructive
demotion from his position as a GS-11 Lieutenant. In early
2011, Petrovsky applied for a vacant position as a Counselor
at FCI-Gilmer (Dkt. No. 111-13 at 36-37). Upon review of the
applicants, Warden Deboo and AW Odom selected Petrovsky for
the vacancy and offered it to him in March of 2011. Petrovsky
accepted the position on March 9, 2011, and began working as
a Counselor shortly thereafter.
Non-Selections for Vacancies
Petrovsky alleges retaliatory non-selection for three BOP
vacancies at the GS-11 (Lieutenant) or GS-12 (Unit Manager)
levels. Petrovsky points to the following three instances
where he applied but was not selected for the position:
1. On September 16, 2011, he was not selected for a GS-11
Lieutenant vacancy at the Federal Correctional Institute in
Elkton, Ohio (“FCI-Elton”);
2. On August 6, 2012, he was not selected for a GS-12 Unit
Manager vacancy at FCI-Gilmer; and
3. On October 12, 2012, he was not selected for a GS-12 Unit
Manager vacancy at the Federal Medical Center in Lexington,
on the alleged retaliation by AW Odom and Warden Deboo,
Petrovsky filed his own EEOC complaint, claiming: (1) He had
been subject to a verbal attack, which was allowed by AW
Odom; (2) Warden Deboo had allowed AW Odom to retaliate
against him; (3) AW Odom had lowered his outstanding annual
evaluation; (4) He had been removed from day watch and placed
on evening watch; and (5) He had been demoted from the
position of Lieutenant and immediately moved.
appeared pro se throughout his administrative
hearings and appeal. During the pendency of his case before
the Administrative Judge (“AJ”), Petrovsky twice
moved to amend his complaint to add claims of non-selection.
First, he added a claim that he had been passed over for the
Unit Manager positions at FCI-Gilmer and FMC-Lexington. He
next added a claim that he had been passed over for the
Lieutenant's position at FCI-Elkton. The AJ, however, did
not add these claims to his complaint, and they were never
addressed during Petrovsky's EEOC case.
to the complaint, the agency representative misrepresented
Petrovsky's position as to his constructive demotion
claim, resulting in his erroneous stipulation that he had
accepted the lower position voluntarily, rather than as a
result of retaliation. Consequently, the AJ never addressed
his constructive demotion claim. Ultimately, the AJ ruled
against Petrovsky, and he timely appealed to the EEOC's
Office of Federal Operations (“OFO”).
appeal, the OFO reversed the AJ's ruling, finding that
the BOP had retaliated against Petrovsky. Specifically, the
OFO determined that:
1. The verbal attacks were likely to deter an employee from
engaging in EEO activity, and therefore, constituted per se
2. The lower annual evaluation was retaliatory;
3. The shift change was retaliatory, but Petrovsky was able
to switch with another employee and thus did not work the
night shift; and
4. Because Petrovsky had stipulated that he voluntarily had
accepted the lower grade position, it was not “really
an issue” in the case.
did not address Petrovsky's non-selection claims. The BOP
moved for reconsideration, which the OFO denied in its final
decision dated December 23, 2015.
claims that the BOP has not complied with the OFO rulings,
and furthermore, that he is entitled to have his constructive
demotion claim heard by this Court because the AJ never
addressed it. On March 21, 2016, Petrovsky filed his
complaint with this Court, asserting causes of action for
retaliation under Title VII of the Civil Rights Act of 1964,
and for back pay under the Back Pay Act (Dkt. No. 1).
to Federal Rule of Civil Procedure 12(b)(1), the BOP moved to
dismiss the constructive demotion and non-selection claims
contained in Petrovsky's complaint (Dkt. No. 55).
Following briefing on several issues, including the
constructive demotion claim, the Court concluded that the AJ
had erred in not hearing Petrovsky's constructive
demotion claim and denied the BOP's motion to dismiss
that claim (Dkt. No. 103). It further concluded that
Petrovsky's non-selection claims, while unexhausted,
reasonably related to his underlying allegation of
retaliation by the BOP and, therefore, could be heard by this
Court (Dkt. No. 109).
has now moved for summary judgment on his annual evaluation,
constructive demotion, and non-selection claims (Dkt. No.
113). The government has moved for summary judgment on all
claims (Dkt. No. ...