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Anthony Palermo v. Hillary Rodham Clinton

March 31, 2011

ANTHONY PALERMO, PLAINTIFF,
v.
HILLARY RODHAM CLINTON, SECRETARY, U.S. DEPARTMENT OF STATE DEFENDANT.



The opinion of the court was delivered by: Judge Joan B. Gottschall

MEMORANDUM OPINION AND ORDER

Anthony Palermo brought this Title VII employment discrimination action against the United States Department of State ("State Department"). Palermo alleges that, after requesting a desk audit, the State Department did not upgrade his job position classification from a GS-11 to a GS-12 position because of Palermo's race and gender, and in retaliation for his previous statutorily protected activity. The State Department filed a motion for summary judgment on all of Palermo's claims. For the following reasons, the State Department's motion is granted.

I.BACKGROUND

Anthony Palermo, a Caucasian man, has worked at the State Department's Chicago Regional Office since 1995. (Def.'s Rule 56.1 Statement of Material Facts ("Def.'s Stmt.") (Doc. 42) ¶¶ 1-2.)*fn1 After beginning his career at a GS-5 level,*fn2 by 1997 Palermo had been promoted to a GS-9 level. (Id. ¶¶ 3-4.) Palermo filed an Equal Employment Opportunity ("EEO") complaint alleging gender and race discrimination on November 21, 2003 against his supervisors Britany Williams and Terry Green. (Pl.'s Rule 56.1(b)(3) Additional Statement of Material Facts ("Pl.'s Stmt.") (Doc. 45) ¶¶ 1-2.) As part of an administrative settlement of those complaints, he was promoted to a GS-11 Passport Specialist. (Def.'s Stmt. ¶¶ 5, 25.) On March 22, 2004, Palermo filed another EEO complaint for failure to promote and filed a lawsuit in federal court on September 10, 2004. (Pl.'s Stmt. ¶ 1; Docket for Case 04-cv-05935, Pl.'s Ex. 25 (Doc. 45-3).) As a part of the settlement of that action, Palermo was laterally transferred to the GS-11 position of Passport Operations Officer in May 2005. (Def.'s Stmt. ¶ 6.) When Palermo was transferred into this position, it was new to the Chicago office. (Def.'s Stmt. ¶ 27.) On May 12, 2006, after learning that the Passport Operations Officer was classified as a GS-12 at some State Department offices, Palermo requested that a "desk audit" be performed to determine the proper grade of his position as Passport Operations Officer in Chicago. (Def.'s Stmt. ¶¶ 7, 31.) Palermo initiated another EEO complaint on September 22, 2006. (EEO Counselor's Report, Pl.'s Ex. 2 (Doc. 45-1) at 1-3.)

A. Desk Audit

In the State Department, a desk audit is conducted when an employee challenges his or her position's current GS grade to determine if the position is properly classified; the audit can result in the position's classification being upgraded, downgraded, or staying the same. After an employee initiates the desk audit process by submitting a request for the audit to his or her manager, the manager contacts the Washington Passport office with the request, where an official determines if Human Resources ("HR") should look into the issue. (Decl. of Herbert Casey ("Casey Decl."), Def.'s Ex. 13 (Doc. 42-7), ¶ 7.) HR conducts the desk audit by speaking with the employee to get a list of the employee's duties; this information is then sent to the employee's managers for verification that the employee performs the tasks identified. (Id.)

The State Department has sixteen regional passport issuance facilities. (Def.'s Stmt. ¶ 20.) The decision to classify positions at such facilities is done by the Personnel Office and Passport Operations Office in Washington, D.C.; the regional offices do not classify the positions. (Def.'s Stmt. ¶ 24.) At the time of Palermo's request for a desk audit, the Passport Operations Officer was classified as a GS-11 position at the majority of State Department offices, with three offices having the position classified at the GS-12 level. (Casey Decl. ¶ 23.) There was no GS-12 Passport Operations Officer position in the Chicago Office. (Def.'s Stmt. ¶ 29.)

After Palermo informed Williams, an African-American woman and the Assistant Regional Director of the Chicago Passport Agency, that he wanted a desk audit in May 2006, Williams informed Florence Fultz, a Caucasian woman and the State Department's Director of Field Operations in Washington, of Palermo's request. (Def.'s Stmt. ¶ 7; Casey Decl. ¶ 8; Decl. of Britany Williams ("Williams Decl."), Pl.'s Ex. 3 (Doc. 45-1), ¶ 41.) In late June 2006, Herbert Casey, an African-American man and the Director of Human Resources in the Bureau of Consular Affairs, contacted Fultz and Gary Roach*fn3 asking if they were dealing with Palermo's request for the audit. (See Casey Decl. ¶ 8; June 30, 2006 Email Chain between Casey, Fultz, and Roach ("June 30 Email Chain"), Pl.'s Ex. 12 (Doc. 45-2), at 1.) Roach responded that he thought "this is [] one of those cases that could backfire on the employee."*fn4 (June 30 Email Chain at 2.) Fultz originally responded to Roach's and Casey's emails by writing, "Unless we can say 'no', based on our view that it would not warrant an upgrade, I guess the next step is to do it. I would be interested in seeing what aspects of his duties he thinks warrant the upgrade." (Id. at 1.) When asked by Casey if she concurred with Palermo's request, Fultz stated, "I don't think it will merit a GS-12. Do we have the option of saying no?" (Id.) After Casey informed Fultz that she could say no to the request, Fultz told Casey that, after speaking with Britany Williams, Fultz had "no objections to proceeding with [Palermo's] request," because Williams "[did] not think there is any risk of a downgrade with a desk audit." (Id.) At some point in July, Casey initiated the desk audit of Palermo's position. (See Casey Decl. ¶¶ 4, 8; Def.'s Stmt. ¶ 34)

As part of the desk audit, Casey sent an email on July 31, 2006 requesting that Palermo provide information regarding the duties he performed that he believed should be considered in the desk audit. (Def.'s Stmt. ¶ 11; Casey Decl. ¶ 9.) Palermo responded to this inquiry by listing his additional duties. (Casey Decl. ¶ 9.) On August 9, 2006, Casey sent Palermo's response to Williams and Green for confirmation of Palermo's additional duties. (Id.) Green is an African-American woman and the Regional Director of the Chicago Passport Agency. The supervisors responded to Casey on August 17, 2006. (Id.) Based on these responses, Casey concluded that Palermo's additional duties that were performed with regularity included distributing transit checks, scheduling of staff for a compressed work schedule, and serving as EMT coordinator and supply manager. (October 23, 2006 Desk Audit Result Letter from Casey to Palermo ("Audit Results Letter"), Def.'s Ex. 10 (Doc. 42-6), at 1; Casey Decl. ¶¶ 18-20.) However, Casey concluded that the other additional duties listed by Palermo, including shredding passport books,*fn5 auditing applications,*fn6 having override authority, and serving as supervisory manager, were not performed with sufficient frequency to be grade-controlling. (Audit Result Letter at 1; Casey Decl. ¶ 17.)

In performing the audit, Casey consulted with George Youravich, a contract consultant, asking him to review the position descriptions for the different grade levels for the Passport Operations Officer positions and discussing the additional duties Palermo identified. (Decl. of George Youravich ("Youravich Decl."), Def.'s Ex. 9 (Doc. 42-6), ¶¶ 5-6; Casey Decl. ¶ 14.) Youravich advised that the tasks Palermo listed as his duties did not appear to be at the GS-12 level. (Pl.'s Stmt. ¶ 25; see also Youravich Decl. ¶¶ 5-6; Casey Decl. ¶ 14.) Casey ultimately determined that Palermo's position was properly classified at a GS-11 level based on the "duties and complexity" of the work Palermo performed. (Pl.'s Stmt. ¶ 23; Casey Decl. ¶ 13; Audit Result Letter at 1.) Casey sent a letter to Palermo informing him of the results of the desk audit on October 23, 2006. (See Audit Result Letter.)

B. Palermo's Relationship with his Supervisors

In late July 2006, while the audit was being conducted, Williams and Palermo engaged in a somewhat testy discussion over email about the fact that Palermo had been denied a promotion to the position of Fraud Prevention Manager. (See Will Call Reprimand Email Chain, Pl.'s Ex. 7 (Doc. 45-2), at 2-4.) Palermo implied that the failure to promote him was the result of discrimination. (See id.) On August 2, 2006, Williams forwarded the emails to Casey, Fultz, Roach, and Green, asking for guidance. (Will Call Reprimand Email Chain at 1-2.) Williams' email stated that Palermo: is taking exception to his non-selection to the Fraud Prevention Manager Position.

While he has generally been cooperative in his role as Operations Officer, his response below does not come as a complete surprise, as it is consistent with the pattern he has maintained over the past few years. (Id.; see Pl.'s Stmt. ¶ 13.) In this August 2nd email, Williams also asked if there had been "any progress on the desk audit Mr. Palermo requested." (Will Call Reprimand Email Chain at 1-2.) Casey responded on August 2nd, saying that he thought it was better not to respond to Palermo about the Fraud Prevention Manager dispute, and indicating that he was going to be sending Green, Fultz, Roach, and Williams a copy of the answers Palermo provided about his additional duties for verification. (Id. at 1.) In his email, Casey stated, "Much of [Palermo's] argument for upgrading his job centers on the GS-12 position in New Orleans which can't be used since he's not doing that work." (Id.)

On August 27, 2006, Williams emailed Palermo: Hi Anthony, Tony is realigning operations in the processing section per my instructions. Delivering will calls to the will call window is a function of the quality control staff and they should perform the function as instructed by the processing supervisors. You have a number of other projects/assignments that I consider more important to occupy your time. Please discontinue retrieving will calls unless I or Ms. Green instruct otherwise. (Aug. 27-29 Email Chain between Williams and Casey, Re: QC to will call ("QC to will call Email Chain"), Pl.'s Ex. 11 (Doc. 45-2), at 2.)*fn7 Palermo's response email, which he also sent to Green, Fultz, and Ann Barrett, objected to the "change in [his] work status and duties," asked if the exclusion from will call extended to the rest of "the management staff or passport specialists" or just to him, and stated that "I intend to ...


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