United States District Court, W.D. Kentucky, Paducah
B. RUSSELL, SENIOR JUDGE
matter comes before the Court upon a Motion to Dismiss filed
by Defendant and Secretary for the United States Department
of Agriculture, Sonny Perdue. (R. 27). Plaintiff, Kevan
Paluso, has responded. (R. 29). The matter is now ripe for
adjudication. For the reasons that follow, the
Defendant's Motion to Dismiss, (R. 27), is HEREBY
case arises from Kevan Paluso's allegations that he was
unlawfully retaliated against, discriminated against,
harassed, and ultimately terminated by his superiors at the
United States Forestry Department based on his age and prior
Equal Employment Opportunity (EEO) activity. (R.1). This
case's procedural history and background is, to say the
least, tangled. To straighten it out, as best it can, the
Court will start from the relevant time-line's beginning
and proceed to its end in chronological fashion, stopping
periodically to summarize things along the way.
Kevan Paluso, was born in February 17, 1960. (R. 29). He
began working for the Federal Government in 2001.
(Id.). In 2009, Paluso became Area Transportation
Program Manager with the United States Forest Service at
Golden Pond, Kentucky. (Id.). He was in charge of
overseeing private and state road contractors.
(Id.). His first line supervisor was Jeff Laird, and
his Second Line Supervisor was Tina Tilly. (Id.).
March 11, 2016, Paluso filed EEO complaint FS-2016-00191. (R.
27, Ex. 1). In that Complaint, Paluso alleged that he was
subjected to discrimination and non-sexual harassment based
on his age and reprisal for prior EEO activity.
(Id.). Paluso made the following specific
November 17, 2015, his supervisor rescinded his designation
as a Contracting Officer's Representative; and
several dates, he was subjected to various acts of
harassment, including but not limited to:
a. in October and November 2015, he was “stalked”
in the office parking lot;
b. from October 2015 to December 2015, his co-workers
repeatedly displayed the hand gesture “L” (for
“loser”) towards him;
c. on an unspecified date, several FS colleagues conspired to
give him a tainted sandwich; and
d. on unspecified dates, management ignored his concerns
about harassment and directly and indirectly demeaned,
antagonized, bullied, and subjected him to hostile treatment.
October 31, 2016, Paluso filed EEO complaint FS-2016-00817.
In FS-2016-00817, Paluso again complained of harassment,
discrimination, and reprisal based on his age and prior EEO
activity. (R. 27, Ex. 3). Neither Party has provided the
Court with documentation related to complaint FS-2016-00817
so as to allow the Court to recount the exact allegations
brought by Paluso therein. However, as will become clear
below, complaint FS-2016-00817 is, in large part, duplicated
by Paluso's next EEO complaint.
25, 2017, Paluso filed EEO complaint FS-2017-00557.
(Id.). Like his previous two, complaint
FS-2017-00557 complains of harassment, discrimination, and
reprisal based on Paluso's age and prior EEO activity.
(Id.). Paluso makes the following specific
allegations in complaint FS-2017-00557:
1. in the summer of 2016, Paluso was issued a Notice of
2. from the summer of 2016, until October 11, 2016,
management required that he work off-site, however failed to
provide him supervision, guidance, a duty location and
telework site (including office furniture, internet access
and office supplies) to perform his duties as such;
3. on several dates, he was subjected to various incidents of
harassment including but not limited to:
a. in the Summer of 2016, management repeatedly required him
to provide a medical statement to ensure he was not a threat
and subsequently abandon it without explanation;
b. on unspecified dates, management officials demeaned,
abused, traumatized, antagonized and treated him differently;
c. on an unspecified date, he was required by management to
drive his personal vehicle to attend a working meeting;
d. on an unspecified date, management provided him an unsafe
government vehicle to attend an off-site meeting;
e. on an unspecified date, management failed to investigate
his repeated complaints against a co-worker; and
f. on an unspecified date, management refused to inform him
of how an alleged poor performance matter could be rectified.
July 25, 2017, Paluso had three separate EEO complaints
pending-FS-2016-00191, FS-2016-00817, and FS-2017-00557. All
three complaints stem from alleged harassment,
discrimination, and reprisal based on Paluso's age and
prior EEO activity.
August 2, 2017, The United States Department of Agriculture
dismissed Paluso's third EEO complaint, FS-2017-00557.
(R. 1-1). Complaint FS-2017-00557 Claims 1, 2, and 3(a)-(e)
were dismissed for two primary reasons: First, those claims
were untimely because Paluso waited approximately ten months
to contact an EEO counselor concerning the alleged conduct,
and second, those claims duplicated the claims alleged in
Complaint FS-2016-00817, Paluso's second EEO claim.
(Id.). EEO Complaint FS-2017-00557's only
remaining claim, Claim 3(f), was singled out and dismissed
for failure to state an adverse employment action.
November 3, 2017, Paluso, through counsel, Ms. Pamela
Bratcher, filed a Complaint with this Court. (R. 1). His
Complaint states that Paluso “filed to assert claims
that were denied by the issuance of a Final Agency Decision
dated August 2, 2017, [the Final Agency Decision dismissing
EEO complaint FS-2016-00557].” (Id.). Under
the title “Jurisdiction and Venue, ” the
Complaint states only the following: “Jurisdiction and
venue in this district is proper as the Plaintiff lives and
resides in this district. The Court has pendent jurisdiction
over Plaintiff's state law claims. (Id.). The
employment practices herein and after alleged to be unlawful
were committed in the Western District of Kentucky.”
(Id.). The Complaint relates the same factual
allegations as those found in the EEO complaint
FS-2017-00557. (Id.; R. 1-1). In addition to those
factual allegations, the Complaint also alleges that
“in the fall of 2017 management emailed to
Plaintiff's family members a negative performance review
that violated Plaintiff's right to privacy and caused the
Plaintiff emotional distress and humiliation.” (R. 1).
Complaint lists five Counts against the Defendant: Count I.
Violation of the Age Discrimination and Employment Act of
1967, Count II. Hostile Working Environment and Retaliation
Based Upon Filing of Previous EEO Complaints; Independent
Claim of Hostile Work Environment, Count III. Constructive
Discharge, Count IV. Invasion of Privacy, and Count V.
Intentional Infliction of Emotional Distress. (Id.).
Paluso prays for the following relief: (1) compensatory
damages for mental and emotional injuries, humiliation, and
ridicule, and past and future lost wages in the amount of
$600, 000, (2) punitive damages in the amount of $400, 000,
(3) trial by jury, and (4) attorney's fees and court
January 26, 2018, after Paluso had filed suit, the United
States Department of Agriculture removed Paluso from service.
(R. 8-2). On March 14, 2018, Paluso appealed his removal from
service to the United States Merit System Protection Board
(MSPB). (Id.). On April 11, 2018, the MSPB dismissed
Paluso's appeal as untimely because it was sixteen-days
April 10, 2018, the Unites States Department of Agriculture
dismissed EEO complaint FS-2016-00191, Paluso's first EEO
Complaint, because Paluso raised the same issues in the
instant litigation as were alleged therein. (R. 27, Ex. 2).
An Administrative Law Judge construed Paluso's filling