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Tipaksorn Tungjunyatham v. Mike Johanns

April 8, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Defendant Mike Johanns, Secretary of the U.S. Department of Agriculture ("USDA"), moves for summary judgment on the single issue remaining in this case: wrongful termination. Having reviewed the parties' briefs and applicable law, this Court now grants Defendant's motion for summary judgment.

I. Factual and Procedural Background

Plaintiff Tipaksorn Tungjunyatham is an Asian Pacific woman who was born in Thailand. USDA's Food and Safety Inspection Service hired Plaintiff as a veterinarian in May 2002 and assigned her to red meat inspection in California. In March 2004, Plaintiff was promoted to the position of Relief Public Health Veterinarian ("RPHV"),*fn1 a position in which she would be expected to temporarily fill in for veterinarians during their absences from permanent assignments at chicken slaughter houses and processing plants.*fn2 The notification of personnel action reflected that Plaintiff's work performance was acceptable prior to the promotion. Plaintiff has also provided evidence of various honors and awards she received while working as an inspector in California.

Before working independently, Public Health Veterinarians ("PHV") attend a nine-week program that includes a job orientation program and participation in an internship. Dr. Douglas Fulnechek (stationed in Springdale, Arkansas) and Dr. Jeffrey Sample (stationed in Jay, Oklahoma) were assigned to be mentors to Plaintiff during her training. Plaintiff spent several weeks working under the direction of each mentor. Fulnechek's and Sample's evaluations of Plaintiff during the course of her training reported that Plaintiff neither met the standardized requirements for an RPHV nor demonstrated proficiency in fundamental job procedures. For example, Fulnechek reported that, although Plaintiff could perform the physical activity of poultry antemortem inspection, she failed to demonstrate an understanding of applicable purposes and policies, and did not recognize the necessity of communication of certain findings to plant management and her superiors. According to Fulnechek's evaluation, Plaintiff failed to demonstrate the ability to address incidents of workplace violence and sexual harassment. He summarized:

[Plaintiff] did not demonstrate the ability to integrate complex interrelated systems. She was exposed to the fundamentals of the position, but has not yet demonstrated proficiency in performing the job. She will need very close supervisory oversight and support.

Sample reported that he had been unable to complete the necessary material with Plaintiff due to certain personal characteristics. For example, Plaintiff was disinterested in various presentations, wandering away to pursue her own agenda and avoiding opportunities to interact with plant management. Her poor attention level complicated Sample's ability to assess whether she had mastered a concept; her comprehension was slow. Sample described Plaintiff as being able to memorize facts but unable to draw together multiple facts or pieces of information to a reasoned conclusion. She seemed to lack an understanding of her job duties and how to perform them. Summarizing his findings that Plaintiff had not mastered the basic survival skills, Sample wrote: "The Intern was exposed to a bulk of the material. The comprehension is questionable."

Plaintiff contends that the following statement in Sample's evaluation is insulting and constitutes ethnic stereotyping:

Another characteristic she exhibited that really concerned me was what seemed to be an inability to develop a systematic thought process . . . . . I believe it will require someone in a role other than a mentor to change her mind set.

Plaintiff states, "Dr. Sample wrote this insulting statement about me (a person who earned PhD degree in veterinary pathology at University of Tokyo, and Masters Degree in Preventive Medicine at University of California, Davis)." She notes that she achieved a high score on the written test following the classroom portion of the training.

On August 6, 2004, Plaintiff received a U.S.D.A. Certificate of Training, certifying that she has "satisfactorily completed [the] PHV Training Program," earning 18.2 continuing education credits.

Because Plaintiff failed to perform a majority of the skills essential for a PHV, the agency determined that Plaintiff would require additional training before she could be assigned an RPHV position. At the Springdale District Office on September 17, 2004, Dr. Marcia Endersby, the FSIS District Manager, and Ms. Suzanne Nelsen, a resource management analyst, conducted performance evaluation counseling for Plaintiff, at which they advised her that her marginal performance bordered on unsatisfactory. Areas of failure included ante-mortem inspection; humane handling; post-mortem inspection; 5000.1 methodology; food safety standards for feces, ingesta, milk (red meat), and feces (poultry); plant management communication; labor management agreement; OCP verification; wellness, health and safety; water retention issues; administrative; human resources and administrative duties; IPPS reviews; and team leadership. Endersby expressed particular concern about Plaintiff's ability to lead an inspection team and to communicate with management. Pursuant to agency policy, FSIS hoped to retain Plaintiff's experience by assigning her to additional training under Fulnechek at George's Inc., a chicken slaughterhouse in Springdale, Arkansas.

Plaintiff disputes evidence demonstrating her failure to demonstrate proficiency during the training process, claiming her performance was satisfactory and that she was never advised of any deficiencies during the course of her training. Although Plaintiff concedes that both Fulnechek and Sample claimed that she needed more training, she contends that Fulnechek never claimed her performance was deficient until long after her training was completed. Plaintiff maintains that Endersby said her performance was "bordering on unsatisfactory," which she contends is "still satisfactory." She also contends that the elapsed time between the end of her training, at which she received a certificate of completion, and the September 14, 2005 conference, was inappropriately long, indicating that the decision to require additional training was a pretext for prejudicial treatment.

Plaintiff maintains that the decision to extend her training rather than permit her to proceed was based on intervening events. She points out that, following the end of the formal training program, she completed assignments as a "relief VMO" in Siloam Springs and Guymon. Then, on September 10, 13, and 15, Plaintiff's EEO representative had four telephone conferences with Defendant's attorney regarding information that Plaintiff's representative had requested regarding Plaintiff's EEO complaint, triggering the requirement of additional training.

On September 24, 2004, when she began the additional training, Plaintiff received and initialed a written memorandum outlining the standards of conduct for FSIS employees. Among other things, the memorandum emphasized the importance of FSIS workers' maintaining a professional relationship with co-workers as a means of reinforcing FSIS's integrity and credibility, and set forth a no-tolerance policy for inflammatory language, which it characterized as an unacceptable substitute for physical aggression. Fulnechek also provided Plaintiff with excerpts from FSIS Directive 4735.7, setting forth FSIS's relationship principles. and FSIS Directive 4735.3, emphasizing employee responsibilities and conduct. The Directives provided that proper performance of government business and citizens' maintenance of confidence in government depended on employee's maintaining "unusually high standards of honesty, integrity, impartiality, and conduct." Plaintiff acknowledges that she received these publications and maintains that she never violated them.

On November 30, 2004, after Plaintiff had an outburst in the lunchroom, Fulnechek advised Plaintiff that her outburst was unacceptable behavior that should not be repeated. Plaintiff denies that she ever made an improper outburst or received counseling for it.

On December 9, 2004, Plaintiff filled a prescription for Alprazolam, a benzodiazepine used to treat anxiety and panic disorder.

On Monday, February 14, 2005, Fulnechek sent Plaintiff home because her emotions were out of control and she was incapable of performing her duties. Sobbing, Plaintiff pleaded not to be placed on a performance improvement plan, claiming lack of sleep and homesickness. She told Fulnechek that she had left California to get away from people who were lying, but they had followed her to Arkansas. Plaintiff did not want to go home because she did not want to use up her leave time. When Plaintiff was still incoherent after 45 minutes, Fulnechek sent her home on administrative leave. Fulnechek did not discipline Plaintiff, characterizing his actions as "counseling," but warned Plaintiff that any further occurrence of similar behavior would require him to take disciplinary action. In an e-mail responding to Fulnechek's written report of the incident, Plaintiff characterized her behavior as "situational anxiety."

On February 16, 2005, Plaintiff met with Fulnechek and co-workers, Sharon Crooks, a consumer safety inspector, and Morris Nations, a supervisory consumer safety inspector, to discuss proper conduct of outside premises inspections. In the course of the meeting, Plaintiff became agitated that, instead of giving her the answers, Fulnechek directed her to consult the regulations. She accused him of trying to trick her. Crooks recalled Plaintiff's repeatedly changing the subject, at one point stating that she wrote Crooks up because Crooks did not perform tests like Nations and another inspector, and needed more practice. After Crooks stated that she understood how to properly calibrate her thermometer and that multiple methods of testing were equally correct, Plaintiff shouted at Crooks, "You lie, You are lying!" Fulnechek again reprimanded Plaintiff, explaining that her accusations against Crooks were improper conduct by a supervisor.

As the discussion grew heated, Nations moved to close the door and stand in front of the door's window to prevent persons in the adjacent lunchroom from witnessing the exchange.

After Fulnechek advised Plaintiff that her conduct was inappropriate and directed her to apologize to Crooks, Plaintiff shouted, "No!" rose from her chair, pushed Nations out of the way with two hands, and flung open the door, striking Nations. She then stepped into the lunch room, which was occupied by both resident and visiting inspectors, and shouted, "Help me . . .Save me . . . Dr. Fulnechek is policing me again!" When Fulnechek came out to tell Plaintiff her behavior was inappropriate, she stormed off to the women's rest room.

Plaintiff maintains that Crooks failed to tell the truth, but denied that she called Crooks a liar. According to Plaintiff, only Fulnechek used inflammatory language.

On the morning of February 17, 2005, Fulnechek left his office briefly. When he returned, he realized that the personnel file in which he kept his notes on Plaintiff was missing from an unlocked file drawer in his office.*fn3 Fulnechek called Plaintiff to his office and, in the presence of Crooks and Nations, asked her whether she knew the location of her folder. After first accusing Nations or Crooks of having taken the folder, Plaintiff replied that she had taken the folder and would exchange it for her formal personnel folder ("the bigger file containing all the lies [Fulnechek] wrote about her"). Plaintiff then told Fulnechek that she took the folder but no longer had the folder, saying first that she given it to her attorney, and later said that she had given it to the police.

Plaintiff denies that she ever took the folder or confessed to having it. She maintains that she had no reason to take the folder since she was given a copy of her personnel folder in December 2004. She adds that the 500-page folder would not have fit under a locker.*fn4

In Plaintiff's presence, Fulnechek called Endersby by speaker phone and explained the situation. Plaintiff denied having the folder. Endersby directed Plaintiff to return the folder, directed Fulnechek to put Plaintiff on administrative leave if she did not return the folder, and added that if Plaintiff refused to leave the premises, Fulnechek should contact plant security to escort Plaintiff from the plant. Plaintiff told Endersby that she was sick and requested to be put on sick leave. (Nelsen recalled that Plaintiff was yelling so loudly during the telephone conference that Fulnechek commented that he could not hear Endersby speaking.) Fulnechek then prepared a written order directing Plaintiff to return the folder.

At 10:04 a.m., Plaintiff called local police via "911," requesting help because her supervisor had her in a submission hold. Plaintiff hung up before police could obtain full information. When police officers arrived at the plant, human resources personnel explained the ongoing disagreement. After officers spoke with her for fifteen minutes, Plaintiff confirmed that she had not been touched but complained that her supervisor was looking for a reason to fire her.

Plaintiff concedes that Fulnechek never touched her but denies having told local police that Fulnechek had her in a submission hold, claiming that the taped conversation she attempted to introduce into evidence in the administrative hearings supports her position.*fn5 Plaintiff denies that Endersby was a party to any conversation between Plaintiff and Fulnechek, dismissing Endersby's declaration as "hearsay."

Fenechek directed Plaintiff to gather her belongings and leave the plant, but Plaintiff refused. Ultimately, Plaintiff was escorted to her car by two plant security officers, who observed Plaintiff linger in the parking lot before finally leaving a short time later.

After Plaintiff left, Fulnechek and other personnel searched the offices for the folder, ultimately concentrating on the women's rest room since Crooks recalled that Plaintiff had been in the rest room repeatedly flushing the toilet. An employee of George's, Inc., who had stopped by to speak with Fulnechek, joined the search and found the file hidden beneath a basket under the lockers. Plaintiff maintains that a 500-page file could not fit under the lockers.

On February 23, 2005, Fulnechek filed his report of Plaintiff's misconduct, including reports of the incidents on November 30, 2004; February 16, 2005; and February 17, 2005. Plaintiff concedes that Fulnechek ...

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