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Alguard v. Vilsack

United States District Court, E.D. Washington

February 17, 2015

WENDY M. ALGUARD, Plaintiff,


THOMAS O. RICE, District Judge.

BEFORE THE COURT is Defendant's Motion for Summary Judgment (ECF No. 41). This matter was submitted for consideration without oral argument. The Court has reviewed the briefing, the record, and files herein, and is fully informed.


On October 25, 2013, Plaintiff filed her First Amended Complaint alleging, inter alia, discrimination and retaliation arising out of her employment with the U.S. Department of Agriculture. In ruling on Defendant's Motion to Dismiss, this Court dismissed Plaintiff's disability discrimination claim for failure to exhaust. ECF No. 39. In the instant motion, Defendant moves for summary judgment on the whistleblower portion of Plaintiff's First Amended Complaint, asserting that Plaintiff never made a valid whistleblower complaint. ECF No. 41.


Beginning in 2001, the U.S. Department of Agriculture ("USDA" or "Agency") employed Plaintiff Wendy Alguard as an Agricultural Commodity Grader Inspector with the USDA's Agricultural Marketing Service. In this position, Plaintiff inspected food products at several food products manufacturers. During her employ with the Agency, Plaintiff learned that one of the manufacturers, Snokist, had been hiding totes of moldy applesauce from Food and Drug Administration ("FDA") inspectors. Plaintiff reported this issue to the FDA in May 2011.[1] As a result, in June 2011, the USDA cancelled its contract with Snokist. This cancellation, among others, led to a decline in work volume at the USDA's Yakima station, which resulted in the USDA reassigning two inspectors. Plaintiff was one of the inspectors selected for reassignment, which she formally refused. The USDA removed Plaintiff from her position, effective December 2011.

On September 6, 2011, following her reassignment but before her removal, Plaintiff initiated proceedings with the Office of Special Counsel ("OSC"), alleging retaliation for whistleblowing. In her complaint, Plaintiff stated the following regarding her disclosure: "I informed the FDA that the processing facility where I was stationed was reprocessing 300 gallon applesauce totes that [were] harmful to humans. I also disclosed that the processing facility had hidden the totes in their ripening rooms' where the FDA could not have looked." ECF No. 30-2 at 5. By January 2012, the OSC had neither terminated Plaintiff's claim nor announced that it would seek corrective action on her behalf.

Following her removal, Plaintiff filed an appeal with the Merit Systems Protection Board ("MSPB") on January 13, 2012, challenging the correctness of both her reassignment and removal.[2] On the form submitted to the MSPB, Plaintiff indicated that she was reassigned and removed "due to reprisal for cooperating and disclosing information to the FDA" which action led to a "loss of revenue for USDA." ECF No. 48-5 at 51. Specifically in the section prompting Plaintiff to provide the facts underlying her whistleblower claim, Plaintiff stated the following:

I disclosed information to the FDA on 5/6/2011. On 6/8/2011, USDA had contracts with Snokist cancelled due to the information I provided to the FDA. On approximately 6/14/2011, USDA was removed from Snokist based on a Memorandum of Agreement with the FDA because of the information I provided to the FDA. On 8/23/2011, I received a letter stating that I was to be directly reassigned due to lack of work. There was no lack of work and I was replaced by part-time employees.

Id. at 61.[3] With respect to Plaintiff's whistleblower claim, the Agency agreed to assume for the purposes of the MSPB hearing that Plaintiff made a valid whistleblower claim and thus requested to proceed to the merits. ECF No. 48-2 at 9. The MSPB rendered its decision in favor of the USDA, which decision became final in August 2013. Plaintiff timely commenced the instant lawsuit, seeking review of the MSPB's final decision.

In the instant motion, Defendant seeks summary judgment on a portion of Count 2 of Plaintiff's First Amended Complaint. ECF No. 41. In her First Amended Complaint, Plaintiff challenges the MSPB's decision as an abuse of discretion or misapplication of law, or otherwise lacking substantial evidence. ECF No. 8 at 14-15. Specifically, Plaintiff challenges the MSPB's analysis of her whistleblower claim, its decision to confine her to MSPB proceedings rather than permitting her to also seek remedies before the OSC, and its analysis of the USDA's implementation of its reassignment procedures. Id. In his motion for summary judgment, Defendant challenges only the portion of Count 2 dealing with Plaintiff's whistleblower claim. ECF No. 41 at 1.


A. Standard for Summary Judgment

Summary judgment may be granted to a moving party who demonstrates "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). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific facts showing there is a genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "The mere existence of a scintilla of evidence in support ...

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