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Barbarito v. McHugh

United States District Court, Second Circuit

May 15, 2013

JOHN McHUGH, Secretary of the Army, Defendant.

CHRISTINA A. AGOLA, ESQ., Office of Christine A. Agola, PLLC, Brighton, NY, STEVEN E. LAPRADE, ESQ., Reeve Brown PLLC, Rochester, NY, for the Plaintiff.

WILLIAM F. LARKIN, Assistant U.S. Attorney, HON. RICHARD S. HARTUNIAN, United States Attorney, Syracuse, NY, for the Defendant.


GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff Michelle L. Barbarito commenced this retaliation action under Title VII of the Civil Rights Act of 1964[1] against defendant John McHugh, [2] secretary of the Army, seeking damages related to her employment with the Army. ( See Compl., Dkt. No. 1.) Barbarito contends that, as a result of engaging in protected Equal Employment Opportunity (EEO) activity, she suffered adverse employment action. ( See id. §§ 20-27.) Pending before the court is McHugh's motion for summary judgment dismissing the Complaint. For the following reasons, the motion is granted in part and denied in part.

II. Background

A. Facts[3]

Barbarito is a Branch Chief of the Personnel Processing Branch (PPB), Military Personnel Division (MPD) at Fort Drum, an Army post located in Jefferson County, New York. ( See Def.'s Statement of Material Facts (SMF) § 1, Dkt. No. 30, Attach. 2); United States v. Volpe, 986 F.Supp. 122, 123 (N.D.N.Y. 1997). Barbarito has worked for the Army since 1982, and has served as Branch Chief since February 2007, a position that requires her to oversee and manage certain aspects of the PPB. ( See Def.'s SMF §§ 2, 4.) The relevant incidents are summarized chronologically.

On April 30, 2008, Barbarito had an argument with her first-line supervisor-Chief, MPD, Terrial Mayberry. ( See id. §§ 9-12; Dkt. No. 29, Attach. 4 at 34.) Barbarito contends that the argument ended with Mayberry telling her "to get the hell out' of his office, and that she was damn lucky to still have a job.'" (Def.'s SMF § 12.) Following the argument with Mayberry, Barbarito contacted the EEO office regarding the incident; immediately afterward, she told her second-line supervisor, Director of Human Resources Gregory Ferguson, that she had gone to the EEO office regarding Mayberry. ( See id. §§ 7-8, 13; Pl.'s SMF §§ 13-14, Dkt. 35, Attach. 1 at 30.) Ferguson and Mayberry referred Barbarito to the Employee Assistance Program (EAP), which assists employees with "family, financial, or other types of personal problems." (Def.'s SMF §§ 20-21.) In May 2008, Mayberry left his position as Chief, MPD, for medical reasons, causing Ferguson to designate Irving Heinzman as Acting Chief, MPD. ( See id. §§ 22-23.) On May 6, 2008, Barbarito was given a "Written Warning" by Ferguson that pertained to the incident with Mayberry on April 30, 2008, as well as a referral to EAP. ( See id. §§ 24-26; Dkt. No. 29, Attach. 4 at 33-34.)

On October 21, 2008, Barbarito testified at an EEO fact-finding conference related to a co-worker's complaint. (See Def.'s SMF § 27; Pl.'s SMF § 15.) Soon thereafter, in November 2008, Barbarito applied for the Chief, MPD, position formerly held by Mayberry. ( See Def.'s SMF § 30.) Ferguson ultimately cancelled the vacancy for which Barbarito had applied. ( See id. § 32.) The parties dispute whether that cancellation was the result of Ferguson's intention to appoint a Chief from a different installation or to retaliate against Barbarito. ( See id.; Pl.'s Resp. to Def.'s SMF § 32, Dkt. No. 35, Attach 1 at 2.)

The next relevant incident occurred in January 2009 when Heinzman, the Acting Chief, gave Barbarito a performance appraisal indicating a rating of "3." ( See Def.'s SMF §§ 34-35.) Ferguson and Heinzman originally proposed that Barbarito be rated as a "3" with a contributing factor adjustment of ""; the Pay Pool Panel, responsible for review of those ratings, determined, however, that Barbarito did not meet the criteria for the contributing factor adjustment. ( See id. §§ 36-40.) Deputy Garrison Commander Judith Getner denied Barbarito's request for reconsideration of her performance appraisal. ( See id. §§ 42-44.) Despite Barbarito's dissatisfaction with the rating, which was identical to that of her prior year's appraisal, she received a performance-based salary increase and bonus. ( See id. §§ 35, 45.)

On April 3, 2009, following an incident involving a conversation with MPD Secretary Traci Taylor-Bush in March 2009, in which she claimed that Barbarito "was very rude... and yelled at her and pounded on her desk, " Heinzman issued a "Notice of Proposed Suspension" reflecting a one-day suspension without pay for Barbarito. (Dkt. No. 29, Attach. 3 at 31; Dkt. No. 29, Attach. 6 at 19-22; see Def.'s SMF §§ 46-47, 54.) Ferguson reduced the discipline to a letter of reprimand to remain in Barbarito's file for one year on May 7, 2009; on April 7, 2009, after the incident with Taylor-Bush but before the letter of reprimand was issued, Barbarito met with an EEO counselor for a pre-complaint interview. ( See Dkt. No. 29, Attach. 4 at 25, 27; Dkt. No. 29, Attach. 7 at 2-5; Pl's SMF § 16.)

On May 12, 2009, Barbarito received an interim performance assessment. ( See Def.'s SMF § 59.) In disagreeing with Barbarito's self-assessment that there were "no instances of EEO/EO principle violations, prohibited personnel practices, discrimination, harassment or retaliation related complaints within the Branch, " Heinzman referenced "a formal complaint file[d] against her for discourtesy and rudeness, " and further stated, among other things, that she "needs additional training and monitoring to improve her people skills." (Dkt. No. 29, Attach. 7 at 8.)

Barbarito also experienced some difficulty with co-worker Gilbert McEachern, another Branch Chief in MPD. ( See Def.'s SMF §§ 63, 69-70.) After Heinzman's retirement in May 2009, Ferguson selected McEachern to serve as Acting Chief, MPD, instead of Barbarito or the only other Branch Chief in MPD. ( See id. §§ 62-64.) In July 2009, McEachern and Barbarito had a disagreement in the hallway at MPD, which led to a meeting between them and Ferguson, and Ferguson attempting to mediate the situation by explaining that, among other things, their behavior was unprofessional. ( See id. §§ 69-70; Dkt. No. 29, Attach. 4 at 28-29.)

Prior to Heinzman's retirement, a vacancy announcement for the Chief, MPD, position was re-announced. ( See Def.'s SMF §§ 62, 72.) Barbarito was one of eleven candidates to make a referral list for the vacancy, all of whom were independently ranked by members of a ranking panel based upon certain criteria. ( See id. §§ 72-76.) None of the panel members knew of Barbarito's prior protected EEO activity. ( See id. § 78.) Barbarito ranked seventh out of eleven, and the position was offered to ...

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