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Morrill v. Nielsen

United States District Court, N.D. Illinois, Eastern Division

June 26, 2018

KIRSTJEN NIELSEN, Secretary of Homeland Security, [1] Defendant.


          John Robert Blakey United States District Judge

         Plaintiff Brian Morrill sued his employer, the Department of Homeland Security (DHS), for alleged discrimination and retaliation in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. [1]. Defendant moved for summary judgment. [24]. For the reasons explained below, this Court grants Defendant's motion.

         I. Background

         A. Local Rule 56.1

         The following facts come primarily from Defendant's Local Rule 56.1 statement of undisputed material facts [26] and Plaintiff's statement of additional facts [33]. The parties agree on many of the relevant facts. Plaintiff, however, unsuccessfully attempts to dispute some of Defendant's statements of fact.

         This Court has “broad discretion” to enforce the local rules. Benuzzi v. Bd. of Educ. of Chi., 647 F.3d 652, 655 (7th Cir. 2011). The local rules governing summary judgment motions demand that the non-moving party's responses to the moving party's statements of fact contain “specific references” to record evidence to justify any denial. Local R. 56.1(b)(3); see also Malec v. Sanford, 191 F.R.D. 581, 584 (N.D. Ill. 2000). Thus, purely argumentative denials, legal conclusions, and unsupported general denials do not belong in Local Rule 56.1 statements. See Phillips v. Quality Terminal Servs., LLC, 855 F.Supp.2d 764, 771 (N.D. Ill. 2012); Malec, 191 F.R.D. at 584. District courts may disregard improper denials and deem the opponent's factual allegations admitted. See Aberman v. Bd. of Educ. of Chi., 242 F.Supp.3d 672, 677 (N.D. Ill. 2017).

         Accordingly, this Court disregards Plaintiff's responses to the following paragraphs of Defendant's statement of facts: 28, 35, 36, and 37. His responses cite portions of the record that fail to refute the statements of fact. See Malec, 191 F.R.D. at 584. Defendant's corresponding statements of fact are deemed admitted. Aberman, 242 F.Supp.3d at 677.

         B. Plaintiff's Employment

         Plaintiff works as an emergency management specialist/program analyst at the Federal Emergency Management Agency (FEMA), a sub-agency of DHS. [26] ¶ 3-4. Plaintiff turned 40 in June 2013. Id. ¶ 3; [26-2] at 15. Plaintiff works in FEMA's Region V, headquartered in Chicago, Illinois. [26] ¶¶ 4, 10. At all times relevant to this case, Plaintiff worked at Region V, in the response division of the planning branch, under the same two supervisors: Gustav Wulfkuhle, the planning branch chief and Plaintiff's direct supervisor, and Paul Preusse, the response division director. Id. ¶ 10. Preusse, in turn, reports to Janet Odeshoo, the deputy regional administrator. Id. Through 2015, Odeshoo reported to Andrew Velasquez III, the regional administrator. Id.

         Plaintiff began working for FEMA in September 2010 as a program analyst at the GS-11/12 pay grade. Id. ¶¶ 6-7. Being hired at that designation meant that if Plaintiff performed satisfactorily for one year, he would automatically advance to the GS-12 pay grade. Id. ¶ 7. In 2011, Plaintiff advanced to GS-12, step 1; in 2012 to GS-12, step 2; in 2013 to GS-12, step 3; and in 2014, to GS-12, step 4. Id.

         As a program analyst, Plaintiff managed and coordinated responses to disasters, emergencies, hazards, and various types of crises. Id. ¶ 8. From the time he started at FEMA, Plaintiff has worked on the New Madrid Planning Project, a large, complex project planning out a regional earthquake response. Id. ¶ 9. At his deposition, Plaintiff described New Madrid as FEMA's “largest project ever.” [26-2] at 10. Plaintiff has also worked on planning initiatives to address pandemics and power outages. [26] ¶ 9.

         FEMA awards discretionary year-end bonuses to employees who achieve an annual performance rating of “exceeds expectations” or “achieved excellence.” Id. ¶ 12. These bonuses can take the form of additional pay or time off. See id. ¶ 14; [26-2] at 202. Performance reviews come from the employee's first-line supervisor, and the regional and deputy regional administrators make the final decision on awarding bonuses. [26] ¶¶ 12-13. Plaintiff received an above-standard performance rating and a time-off bonus in 2013. Id. ¶ 14. From 2014 to 2016, Plaintiff received an “achieved expectations” rating, and therefore did not qualify for a year-end bonus. Id. Wulfkuhle, as Plaintiff's direct supervisor, reviewed Plaintiff's performance during this period. See id. ¶¶ 10, 12; [33] ¶ 24.

         C. IMAT

         FEMA runs a regional Incident Management Assistance Team (IMAT) comprised of various emergency management employees who deploy in teams to disaster sites. [26] ¶ 15. Before 2013, IMAT had a dedicated, full-time staff; following a restructuring, FEMA decided to staff IMAT with temporary employees from across other departments. Id. In facilitating this transition, FEMA had to offer all former full-time IMAT employees new, permanent positions in FEMA and seek volunteers from other departments. See id. ¶¶ 15-16.

         In mid-2013, Preusse asked Plaintiff to volunteer for IMAT. Id. ¶ 27. Plaintiff considered this a “collateral duty” rather than a requirement for his position. Id.; [26-2] at 17. Preusse attests that he asked Plaintiff to volunteer because IMAT needed someone with his skill-set and Plaintiff had no other “substantive collateral duties at the time.” [26-2] at 145. Plaintiff testified that he agreed to be on IMAT because his conversation with Preusse suggested that volunteering would help his promotion to the GS-13 level. See [26-2] at 15, 17. In a November 2013 email, and in a declaration submitted with his response, Plaintiff declared that he felt “pressured into” volunteering. [26-2] at 239; [33-1] at 2.

         In November 2013, Plaintiff was asked to deploy with IMAT and emailed Wulfkuhle asking to be excused. [26] ¶ 28; [26-2] at 239. According to Plaintiff, when he asked to be removed from IMAT Preusse told him, “you know what this is going to do to you, ” which Plaintiff interpreted to mean that leaving IMAT would harm his chances of a promotion to GS-13. [26-2] at 18. Around roughly the same time, and possibly in 2012 and 2014, Plaintiff repeatedly complained to Preusse and Wulfkuhle about the merit selection system in place in his division-specifically mentioning his lack of advancement and the division's failure to fill vacant positions in the planning branch. See id. at 18-19. Plaintiff believed Preusse's implied threat also stemmed from his resentment of Plaintiff's complaints. See id.; [33] ¶ 9.

         By the end of 2013, Preusse granted Plaintiff's request to be removed from IMAT. [26] ¶ 30. Plaintiff never deployed to a disaster site while assigned to IMAT. Id. ¶ 29.

         D. Protected Activity

         Eric Phillipson worked with Plaintiff as a program analyst in the response division of the planning branch. Id. ¶ 23. In 2013, Phillipson filed an equal employment opportunity (EEO) complaint alleging age discrimination and retaliation. Id. In February 2014, Plaintiff submitted a witness affidavit supporting Phillipson's complaint. Id. ¶ 24.

         Plaintiff submitted the affidavit to Janel Fairchild, an investigator contracted by FEMA for the administrative investigation. Id. ¶ 25. Initially, Plaintiff did not share the affidavit with anyone else. See id.; [32] ¶ 26. On October 1, 2015, Plaintiff emailed Wulfkuhle to express his ongoing dissatisfaction with his pay grade and responsibilities. See [32] ¶ 26; [26-2] at 376-77. In that email-and in a conversation earlier that day-Plaintiff referenced his affidavit in support of Phillipson, as well as his belief that Wulfkuhle's actions relating to Plaintiff's pay and responsibilities constituted retaliation for that affidavit. See [26-2] at 376. There is no evidence that Plaintiff told his supervisors about the affidavit earlier than October 2015. See [26] ¶ 26; [32] ¶ 26.

         E. Alleged Retaliation and Discrimination in 2015

         Plaintiff claims that the following incidents from 2015 represented discrimination and/or retaliation on the part of DHS.

         In February 2015, Plaintiff left his personal identity verification (PIV) card in his computer while he stepped away from his desk. [26] ¶ 32. This represented a breach of FEMA's IT security policies, which require employees to log off computers whenever they leave their desks and to keep their PIV card on them at all times. Id. ¶ 31. An IT employee spotted Plaintiff's unattended PIV card, removed it from his computer, and brought it to the security office. Id. ¶ 32. When Plaintiff went to the security office to retrieve his PIV card, he felt that the security employee who had his card-Richard Amburgey-treated him disrespectfully. Id. ¶¶ 33-34; [32] ¶ 34. Plaintiff “became more frustrated” and “reached over” and said “just give me my fucking ID.” [26] ¶ 34; [26-2] at 43. Plaintiff felt that the IT employee and Amburgey had singled him out: even though leaving his PIV card constituted a security violation, Plaintiff testified that no one else in Region V “ever had their ID pulled from their computer and turned into security except me.” [26-2] at 43-44.

         That same day, Amburgey completed a “Security Incident” form; Plaintiff also disclosed the incident to Wulfkuhle and apologized to Amburgey. See [26] ¶¶ 32, 35-36; [26-2] at 278-79. Wulfkuhle consulted with Preusse and Keith Johnson, an employee relations liaison. [26] ¶ 36. Johnson asked Wulfkuhle to gather information about the incident and various employees who had witnessed the interaction submitted statements. Id. Wulfkuhle sent the statements to Johnson, noting that this was the first such incident involving Plaintiff. Id. ¶ 37. In March, Johnson told Wulfkhule to “counsel” Plaintiff about the incident, and Wulfkuhle did so. Id. Neither Wulfkuhle nor any other supervisor took any additional action toward Plaintiff, or added the incident to Plaintiff's personnel file. Id.

         In July 2015, Plaintiff requested a “desk audit”-an assessment of his job duties that he hoped would lead to a reclassification of his position at the GS-13 level rather than GS-12. See id. ¶ 38. Maya Scott, a human resources specialist, conducted the audit, for which both Plaintiff and Wulfkuhle completed questionnaires about Plaintiff's work. Id. ¶¶ 39-40. In September 2015, Elizabeth Hough, the chief of FEMA's position management and classification branch, issued the results of the desk audit, concluding that Plaintiff had been correctly classified at GS-12. Id. ¶ 41. Plaintiff disputed the result and argues that Wulfkuhle's responses to the audit questionnaire were “completely inaccurate” and “purposefully false.” Id. ¶¶ 42-43; [33] ¶ 18. For example, Plaintiff argues that Wulfkuhle failed to note that Plaintiff's work included interagency coordination and objects to Wulfkuhle's lack of detail in his responses. See [33] ¶ 18; [26-2] at 329.

         Plaintiff appealed the desk audit findings on September 23, asserting in his appeal that Wulfkuhle's responses constituted misconduct and “an act of reprisal” for Plaintiff's support for Phillipson. [26] ¶ 44; [26-2] at 359-60. Plaintiff directed his appeal to the Office of the Chief Component and Human Capital Officer and the Office of Special Counsel. [26-2] at 359.

         On November 3, 2015, Angela McGuirl, a human resources officer, rejected Plaintiff's appeal because, pursuant to FEMA's internal policies, classification determinations are not appealable. [26] ¶ 45; [26-2] at 367. She encouraged Plaintiff to discuss the situation with his supervisor or pursue a grievance through his union's bargained-for process. See [26-2] at 367. She also submitted his letter to FEMA's Employee and Labor Relations Branch, insofar as it represented a complaint about Wulfkuhle's conduct. See id. at 367-68.

         Finally, Plaintiff contests the 2015 appointment of Morgan Geiger to a Region V project that Plaintiff had worked on. See [26] ¶¶ 49, 64, 65. At some point that year, Velasquez, the administrator for Region V, agreed to accept Geiger on a one-year detail from DHS' finance office to FEMA's Region V, during which time Geiger's salary would be paid out of FEMA headquarters. Id. ¶ 46. Geiger held a GS-15 position at the time. Id. Geiger is older than Plaintiff. [26-2] at 59. Velasquez informed Odeshoo and Preusse about the arrangement, and they placed Geiger in the Region V planning branch because it was short-staffed. [26] ¶ 47.

         On October 1, Wulfkuhle informed Plaintiff about Geiger's detail and that Geiger would take over the Power Outage Annex project that Plaintiff had been working on. Id. ¶ 48; [26-2] at 378. At the time, Plaintiff was working on the Power Outage Annex project, the New Madrid Planning project, and hazards and pandemic planning responsibilities; he testified that this kept him “really busy.” [26-2] at 57. Plaintiff objected to losing the Power Outage Annex project because it was a “major” project and he felt Geiger lacked relevant expertise. Id. at 58-59. But Plaintiff remained on New Madrid and the hazards and pandemic planning tasks, and experienced no pay cut. Id. at 59. Plaintiff felt that his removal from the Power Outage project constituted retaliation for either: his stated dissatisfaction with the merit selection system in place in Region V; his statement in support of Phillipson; or his complaints about Amburgey and Wulfkuhle following the PIV card incident. Id. at 60. He said as much in an email to Wulfkuhle that same day. [26-2] at 376-77. Plaintiff also contends that the New Madrid project did not entail much work in late 2015 since it was not expected to “kick off until 2016, ” and claims that the shift in his assignments affected his desk audit. See [33] ¶ 21.

         In addition to these incidents, Plaintiff identifies the alleged pressure placed on him to join IMAT-discussed above-as an example of discrimination and retaliation. [26] ¶¶ 64-65. Plaintiff also claims that his failure to secure a promotion to GS-13 before November 2015 constituted discrimination and retaliation, see id., as discussed next.

         F. GS-13 Positions and Promotion

         Plaintiff applied for four GS-13 positions between 2013 and 2015-three in FEMA's mitigation division and one in ...

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