Velazquez-Ortiz v. Vilsack
2011 U.S. App. LEXIS 19416
| 1st Cir. | 2011Background
- Velazquez, a USDA employee since 1977, alleges age and gender discrimination and retaliation for prior EEO activity.
- She was passed over for GS-9/GS-7 promotions in 1997 and 2004, with reasons tied to new blood and mortgage-industry qualifications.
- In 2003 she filed an informal grievance against a supervisor; this grievances and EEO activity form the core of the disputed claims.
- USDA conducted investigations culminating in 2007 final agency decision finding no discrimination or retaliation.
- EEOC and district court proceedings led to summary judgment for the Secretary, which Velazquez appealed.
- Issue framing on appeal centers around exhaustion of sex-based discrimination claims, retaliation causation, and ADEA standard.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of sex discrimination claim | Velazquez exhausted via 2004 EEO filing and prior complaints. | 2004 complaint did not allege sex discrimination; thus exhausted claims are limited. | District court proper; sex claim dismissed for lack of exhaustion. |
| Retaliation claim viability | Causation shown by close involvement of decisionmaker and prior EEO activity. | Temporal gap and lack of direct knowledge show no causation. | No reasonable inference of causation; retaliation claim affirmed as lacking. |
| ADEA burden of proof in federal sector | Age was a motivating factor under mixed-motive theory. | No pretext or age-based motive; mixed-motive not shown. | Even under mixed-motive framework, Velazquez cannot show age motive. |
| Overall sufficiency of age discrimination evidence | Record shows qualifications and 'new blood' memo imply age bias. | Evidence shows Bruno's greater relevant experience and interview performance; no age bias in decision. | No reasonable factfinder could find age to be a factor; summary judgment affirmed. |
Key Cases Cited
- Brown v. Gen. Servs. Admin., 425 U.S. 820 (1976) (exhaustion prerequisite for federal discrimination claims)
- Vera v. McHugh, 622 F.3d 17 (1st Cir. 2010) (structured EEO process governs exhaustion)
- Thornton v. United Parcel Serv., Inc., 587 F.3d 27 (1st Cir. 2009) (administrative complaint scope narrows federal suit claims)
- Davis v. Lucent Techs., Inc., 251 F.3d 227 (1st Cir. 2001) (relation between administrative charge and federal court complaint)
- Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6 (1st Cir. 2004) (causation and protected activity in retaliation claims)
- Mesnick v. General Electric Co., 950 F.2d 816 (1st Cir. 1991) (aggregate package of proof in mixed-motive/age claims)
- Calhoun v. Johnson, 632 F.3d 1259 (D.C. Cir. 2011) (mixed-motive framework in federal sector)
- Pomales v. Celulares Telefónica, Inc., 447 F.3d 79 (1st Cir. 2006) (causal knowledge and timing in retaliation analysis)
- King v. Town of Hanover, 116 F.3d 965 (1st Cir. 1997) (causation requires more than mere knowledge of protected conduct)
- Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (Supreme Court, 2009) (private-sector 'but-for' standard; federal-sector applicability debated)