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Petrovsky v. United States Attorney General

United States District Court, N.D. West Virginia

April 24, 2018

UNITED STATES ATTORNEY GENERAL, Dept. of Justice - Bureau of Prisons, Defendant.



         This 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).

         I. BACKGROUND

         A. Factual Background

         Petrovsky 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.

         1. Verbal Confrontation

         Petrovsky 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.

         The 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).

         2. Annual Performance Evaluation

         Petrovsky 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).

         The 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.” Id.

         Pursuant 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. 111-4).

         3. Shift Change

         Petrovsky 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).

         4. 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.

         5. Non-Selections for Vacancies

         Finally, 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, Kentucky (“FMC-Lexington”).

         B. Procedural Background

         Based 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.

         Petrovsky 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.

         According 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”).

         On 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 retaliation;
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.

         The OFO 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.

         Petrovsky 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).

         Pursuant 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).

         Petrovsky 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. ...

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