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Alguard v. Vilsack

United States District Court, E.D. Washington

October 31, 2014

WENDY M. ALGUARD, Plaintiff,
v.
THOMAS VILSACK, SECRETARY OF THE U.S. DEPARTMENT OF AGRICULTURE, Defendant

For Wendy M Alguard, Plaintiff: Michael A Jacobson, LEAD ATTORNEY, Michael A. Jacobson PS Inc, Seattle, WA.

For USDA, Tom Vilsack, U.S. Dept of Agriculture, Defendants: Rudolf J Verschoor, LEAD ATTORNEY, United States Attorney's Office, Spokane, WA.

Page 1071

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

THOMAS O. RICE, United States District Judge.

BEFORE THE COURT is Defendant's Motion to Dismiss (ECF No. 23). This matter was submitted for consideration without oral argument. Michael A. Jacobson represents Plaintiff. Rudolf J. Verschoor represents Defendant. The Court has reviewed the briefing and the record and files herein, and is fully informed.

BACKGROUND

This is a discrimination and retaliation case arising out of Plaintiff's employment with the U.S. Department of Agriculture. Plaintiff seeks redress under the Rehabilitation Act, 29 U.S.C. § 701 et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq.; and review of the Merit

Page 1072

System Protection Board's final decision. In its September 29, 2013 Order, this Court dismissed Plaintiff's initial Complaint for failure to state a claim but granted leave to amend. ECF No. 7. Plaintiff subsequently filed her First Amended Complaint on October 25, 2013. ECF No. 8. In the instant motion, Defendant moves to dismiss Plaintiff's First Amended Complaint. ECF No. 23.[1]

FACTS

Beginning in 2001, the U.S. Department of Agriculture (" USDA" or " Agency" ) employed Plaintiff Wendy Alguard as an Agricultural Commodity Grader inspector. ECF No. 8 at 1. The USDA division in which Plaintiff worked, the Agricultural Marketing Service, operates an inspection service whereby a food processor pays the USDA to inspect its products in exchange for permission to market its products as USDA-inspected. Id. at 3. While inspecting one facility in the greater Yakima area, Plaintiff learned of a public health issue and reported the issue to the Food and Drug Administration. Id. at 4; see ECF No. 8-1 at 16. As a result, in June 2011, the USDA cancelled its contract with the manufacturer. ECF No. 8 at 4.

Subsequently, and as a result of other cancelled contracts, USDA's Yakima station experienced a decline in work volume. Id.[2] The USDA proceeded to reassign two inspectors based on inverse seniority. Id. By August 18, 2011, Plaintiff was formally notified that she had been selected as one of the least senior employees at the Yakima Duty Station. Id. Plaintiff was initially reassigned to a plant in Warden, Washington; however, this location was later amended to Kingsburg, California. Id. Plaintiff formally refused this reassignment at the end of September 2011. Id. at 5. Accordingly, the USDA removed Plaintiff from her position with the agency, effective December 2011. Id.

Initially following her reassignment and then removal, Plaintiff initiated several administrative proceedings with the U.S. Office of Special Counsel (" OSC" ), the USDA's Equal Employment Opportunity (" EEO" ) Counselor and Office of Adjudication, and the Merit System Protection Board (" MSPB" or " Board" ).

On September 6, 2011, Plaintiff initiated informal proceedings with the Agency's EEO counselor, alleging disability and sex discrimination. ECF No. 29-4. Also on September 6, 2011, Plaintiff initiated proceedings with the OSC regarding her reassignment, alleging retaliation for whistleblowing. ECF Nos. 8 at 2; 30-2. Shortly thereafter, on September 17, 2011, Plaintiff filed an appeal with the MSPB, alleging that the USDA implemented improper reassignment procedures. ECF No. 28-1. Thus, by mid-September 2011, Plaintiff had three separate and simultaneous administrative proceedings pending.

In October 2011, pursuant to USDA's notice of proposed removal, ECF No. 27-4, the Agency's EEO counselor notified Plaintiff of her right to file a formal EEO complaint with the USDA's Office of Adjudication. ECF No. 29-5. Subsequently, on October 28, 2011, Plaintiff filed a formal

Page 1073

EEO complaint, alleging claims of gender and disability discrimination. ...


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