The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on January 16, 2009
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
Defendant's Motion for Summary Judgment ("Motion") came before the Court for hearing on March 9, 2009. After reviewing and considering all papers filed in support of, and in opposition to, the Motion, as well as the arguments advanced by counsel at the hearing, the Court DENIES the Motion.
On August 8, 2007, Plaintiff Kathleen Opliger ("Plaintiff") filed this action, naming Mike Johanns as Secretary of the U.S. Department of Agriculture ("Defendant") as Defendant. She states three claims: (1) discrimination on account of sex in violation of Title VII; (2) retaliation in violation of Title VII; (3) wrongful termination.
On January 16, 2009, Defendant filed its Motion for Summary Judgment ("Motion"). Plaintiff filed Opposition and Defendant filed its Reply.
B. Evidentiary Objections
Defendant objects to portions of several paragraphs of Plaintiff's declaration (Declaration of Plaintiff ("Pl. Decl")). The Court sustains the objections to the quoted excerpts from the following paragraphs: 7, 12, 16, 17, 20 (only insofar as Plaintiff reports the remarks of Feser); 21 (to the extent Plaintiff describes her job duties as not those of a firefighter and her description of Dietrich's instructions). The Court also sustains Defendant's objections to paragraph 23 of Plaintiff's declaration and Exhibit 3 attached thereto on the basis of lack of foundation.
The Court overrules objections to the following paragraphs of Plaintiff's declaration: 18 (text quoted in objection does not appear at paragraph 18 of declaration); 21 (only to the extent Plaintiff describes placement of her desk), 25.
In her Statement of Genuine Issues ("SGI"), Plaintiff objects to several of Defendant's asserted undisputed facts, which she lists according to the numbers next to which they appear in Defendant's Statement of Undisputed Facts ("DSUF"). The Court sustains Plaintiff's objections to the following items in the DSUF: 9, 43, 44, 45, 46, 47, 51, 52 and 53.
The Court overrules Plaintiff's objections to the following items in the DSUF: 11, 14, 17, 18, 21, 22, 23, 24, 26, 27, 33, 34, 35, 36, 39, 41, 42, 48, 49, 50 (to the extent Dietrich reports his own actions), 54, 55, 56 and 57.
The Court overrules all objections not listed here as moot.
In 1989, Plaintiff began work at the National Forest Service in the San Bernardino National Forest and eventually rose to the rank of Engine Captain. (DSUF 1.) Approximately a decade later, in 1999 or 2000, Plaintiff's husband, Rocky Opliger ("R. Opliger") "detailed into" or performed a temporary work assignment, as a Deputy Forest Fire Management Officer in San Bernardino National Forest. In 2000, Defendant hired R. Opliger for this position on a permanent basis. (DSUF 5.)*fn1
At the time, Fire Management Officer Michael Dietrich ("Dietrich") contacted regional authorities about nepotism concerns and issued R. Opliger a letter ("the limitations letter") requiring him to remove himself from his wife's chain of command in certain circumstances and refer matters involving Plaintiff to Dietrich. (DSUF 4-6.) Plaintiff did not receive a copy of the limitations letter. (Pl. Decl. ¶ 4; DSUF 6, 8.)
During the same year Defendant hired R. Opliger, Defendant promoted Betty Ashe to Battalion Chief. (Plaintiff's Statement of Genuine Issues ("SGI") 117; Ex. 14.) Ashe was to remain the only woman of the Battalion Chief rank until 2005. (DSUF 46; Deposition of Kathleen Opliger ("Pl. Dep.") 188, Declaration of Joseph Howell ("Howell Decl.") Ex. 3; Deposition of Rocky Opliger ("R. Opliger Dep.") 55, Howell Decl. Ex. 2.)
1. 2002 Battalion Chief Position
From fall through winter of 2000-01, Defendant permitted Plaintiff to detail into a Battalion Chief Training Coordinator position for 3 months. The next year, in the late summer to winter of 2001-02, Plaintiff detailed into a "Battalion Chief Suppression" position for 120 days. (Pl. Decl. ¶ 5.)
In May 2002, after Plaintiff had completed her second detail in a Battalion Chief position, Defendant advertised an opening for a permanent Battalion Chief Suppression Officer position for Battalion 31 and Plaintiff applied. (Pl. Decl. ¶¶ 5-6; Deposition of Michael Dietrich ("Dietrich Dep.") 125:8-13, Howell Decl. Ex. 5.)
In July 2002, Defendant rejected Plaintiff for the Battalion Chief position, citing nepotism concerns in a letter issued by Forest Supervisor Gene Zimmerman ("Zimmerman"). Defendant removed Plaintiff from the list of eligible candidates; as a result, she was passed over for another Battalion Chief position as well, when Defendant used the list compiled for the 2002 position to fill a vacancy in June 2003. (Pl. Decl. ¶ 11.)
Also in July 2002, Division Chief Mitch McCormick ("McCormick"), whom a fellow employee testified referred to women by derogatory names and resented their presence in the workplace, had recommended Darryl Mincey ("Mincey") for the 2002 position. (Deposition of Steve Kilgore ("Kilgore Dep.") 17-21, Howell Decl. Ex. 7.) Mincey already held a Battalion Chief position. Dietrich acted on McCormick's recommendation and suggested Mincey to Zimmerman; Mincey, a white male, obtained the 2002 position. (Pl. Decl. ¶ 8; Kilgore Dep. 17-21.)
According to Plaintiff, she was angry Mincey received the 2002 position but she did not complain because she feared being "blackballed." (Pl. Dep. 134.)
2. 2003 Battalion Chief Position
After Defendant rejected her for the 2002 Battalion Chief position, Plaintiff once again detailed into a Battalion Chief position, this time a Battalion Chief Training Coordinator position, beginning in the fall of 2002 and ending in February 2003. (Pl. Decl. ¶ 9.)
In the spring of 2003, R. Opliger received a complaint that Mincey had made a threat of violence against Plaintiff. Some of Plaintiff's staff also complained that McCormick and Mincey were treating them badly because their supervisor was a woman. R. Opliger told Dietrich about these complaints. (R. Opliger Dep. 44-51.) According to R. Opliger, he received the complaints in March 2003; Dietrich testified he received them in mid-to-late June 2003. (R. Opliger Dep. 45-51; Dietrich Dep. 57.)
In May 2003, Defendant again advertised for a Battalion Chief position, this time the Battalion Chief Training Officer ("2003 position") for which Plaintiff applied. (Pl. Decl. ¶ 10.)*fn2
After Defendant advertised the 2003 position, three chains of events simultaneously occurred during the summer and fall of 2003. First, Defendant rejected Plaintiff from the 2003 position citing nepotism concerns and filled the vacancy with a male applicant. (Zimmerman Dep. Ex. 12; SGI ¶ 86; Pl. Decl. ¶ 15.)
Second, by the summer of 2003 Dietrich had received several complaints that R. Opliger was favoring Plaintiff, that Plaintiff appeared to be working excess overtime, that she may have played an improper role in hiring her niece, and that R. Opliger and Plaintiff had a conversation on July 3, 2003 about a third person receiving a training assignment that may have run afoul of the limitations letter. (DSUF 10-12.) By July 5, 2003, Dietrich had begun a fact-finding inquiry into Plaintiff's conduct and by August 2003 the regional office authorized a formal investigation. The investigation would continue ...