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Oliver-Simon v. Nicholson

August 25, 2005


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff Gloria Oliver-Simon filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., as amended ("ADEA"), alleging that defendant R. James Nicholson, Secretary of the U.S. Department of Veterans Affairs ("defendant" or "VA"), discriminated against her on the basis of her race, sex and age when she was not selected for five discrete positions for which she had applied. Plaintiff also alleges that the same five non-selections were in retaliation for her participation in activity protected by Title VII and the ADEA. Defendant has now moved for summary judgment on all of plaintiff's discrimination and retaliation claims based on plaintiff's failure to state a prima facie case or rebut defendant's proffered justification for her non-selection. For the reasons set forth below, defendant's motion for summary judgment is granted.


The following facts relating to each non-selection are undisputed unless otherwise noted. Plaintiff, a African-American female born on September 19, 1947, has worked for the VAfor the past 37 years, and currently holds the position of Supervisory Human Resources Specialist at the GS-14 level. Pl. Opp'n at 1. Since 1980, plaintiff has worked in the VA's Office of Human Resources Management and Labor Relations (OHRM). Plaintiff's Statement of Material Facts in Genuine Dispute ("Pl. Statement"), Ex. 1, Declaration of Gloria Oliver-Simon ("Oliver-Simon Decl.") ¶ 2. Over the period from 1995 through 2001, plaintiff applied for over twenty different positions at VA and was rejected on each occasion. At issue in the present case are a series of five non-selections that occurred during the twenty-eight month period from September 1998 to January 2001. Plaintiff's original Complaint included a claim for every position as to which plaintiff was rejected. However, through Orders dated October 31, 2002, and November 22, 2003, the Court dismissed all but five of plaintiff's claims for failure to timely exhaust her administrative remedies. The five remaining claims are designated by the following vacancy announcements: HRM-98-74; OGC-99-33; HRM-00-24; HRM-00-50; and HRM-01-01.

I. Vacancy Announcement HRM-98-74

In September 1998, plaintiff applied for a vacancy in the position of Supervisory Personnel Management Specialist in OHRM. See Defendant's Statement of Material Facts Not in Genuine Dispute ("Def. Statement") ¶ 1. The rating panel, comprised of Earl Koteen, Dennis Curley and Veronica Wales, see Pl. Opp'n at 2, reviewed plaintiff's application along with others, ranked all the candidates and forwarded its list of best qualified candidates to Deputy Assistant Secretary Ronald Cowles, a white male, whose role it was to recommend a candidate for appointment. See Pl. Opp'n, Ex. 14, Deposition of Joyce Elaine Felder ("Felder Dep.") at 75. Plaintiff was not ranked among the "best qualified" for this position, and her name was not forwarded to the selecting official. Def. Statement ¶ 2. Mr. Cowles ultimately selected Nilda Salas, a Hispanic female born on November 6, 1952, for the position. See id. ¶ 3; Pl. Opp'n at 2 & Ex. 17. Because Ms. Salas was already a GS-15 and was laterally reassigned to this vacancy from elsewhere in VA (she had previously worked in the Office of Human Resources Management in 1995, when she assisted with the restructuring of the Office), she was not rated or ranked by the rating panel. See Pl. Opp'n, Ex. 9, Affidavit of Earl Koteen ("Koteen Aff.") at 19 (stating that "reassignment candidates [already at the same GS level as the vacancy] were not referred to us for rating and ranking. . . . If they are qualified, they can be referred without rating and ranking.").

II. Vacancy Announcement OGC-99-33

In August 1998, plaintiff applied for the position of Supervisory Personnel Management Specialist in the Office of the General Counsel (advertised in announcement number OGC-99-33), which was a GS-14 position. Def. Statement ¶ 4. Plaintiff was interviewed for this position, but the vacancy was cancelled. The position was re-posted in January 1999, at which time plaintiff was again interviewed, this time with selecting official Edward McGarrity. See Pl. Opp'n at 3. In an April 20, 1999 memo, plaintiff was informed that she had not been selected for the position, and that Mr. McGarrity had offered the job to Rita McCullough, a white female born on January 5, 1954, who at the time was working in the same position at the Board of Veterans Appeals. See Def. Statement ¶¶ 5-6; Pl. Opp'n at 2 & Ex. 2, Deposition of Gloria Oliver-Simon ("Oliver-Simon Dep."), pp.73, 75.

III. Vacancy Announcement HRM-00-24

In March 2000, plaintiff again applied for the position of Supervisory Personnel Management Specialist (HRM-00-24). This was the same position that had been previously posted as HRM 98-74 and filled by Ms. Salas, who departed the job after a year. See Pl. Statement ¶ 27. While her application was pending, plaintiff was detailed to fill the position in an acting capacity from July 2000 through November 2000. Id. ¶ 28. For this vacancy, Mr. Cowles was initially again responsible for supervision of the hiring process, but Constantine Verenes, Director of the Office of Administration at the VA, eventually assumed the role of recommending official. Id. ¶ 34. The rating panel, consisting of Mr. Curley, James Lee and Barbara Hulick, did not rank plaintiff among the best qualified, and her name was not among those forwarded to Mr. Verenes for selection. Def. Statement ¶ 8. Those ranked best qualified were interviewed by Mr. Verenes and Elaine Marshall, who worked in the VA's Veterans Benefit Association. Oliver-Simon Decl. ¶ 25(d); Pl. Opp'n at 2, 17. Ultimately, Theresa Jenkins, a white female born on January 20, 1954, who worked in another area of the VA, was offered the position in October 2000.*fn2 See Def. Statement ¶ 9;Oliver-Simon Decl. ¶ 25 (d); Pl. Opp'n at 2, 14. When she declined the job, Mr. Verenes offered it to Ms. Marshall, who was born on August 3, 1942, through a lateral reassignment. See Def. Statement ¶ 10; Oliver-Simon Dep. at 88-89; Pl. Opp'n at 2.

IV. Vacancy Announcement HRM-00-50

Plaintiff's fourth non-selection claim arises from her application for another Supervisory Personnel Management Specialist position, announced in HRM-00-50 in September 2000. Def. Statement ¶ 11. The rating panel for this position consisted of Mr. Lee and Carol Mellen, with Mr. Cowles and the Principal Deputy Assistant Secretary for Human Resources and Administration, Robert Schultz, serving as recommending officials. See Pl. Opp'n, Ex. 15, Deposition of Ronald Cowles at 218-19; id., Ex. 28, Combined Rating Sheet. Deputy Assistant Secretary for Human Resources Management, Ventris Gibson, was the selecting official. See Pl. Opp'n at 2 & Ex. 28, Selecting Official's Endorsement. Plaintiff's application was reviewed by the rating panel members, but her scores were not sufficient to place her on the best qualified list, so her name was not forwarded to the recommending or selecting officials. See Def. Statement ¶ 12. On November 29, 2000, Ms. Gibson selected Angel Wolfry, a white female born on August 12, 1965, to fill the position. See Def. Statement ¶ 13; Pl. Opp'n, Ex. 28, Selecting Official's Endorsement.

V. Vacancy Announcement HRM-01-01

Plaintiff's final non-selection claim is based on her application for an Executive Assistant position, which was announced in November 2000. Def. Statement ¶ 14. The rating panel for this position was composed of Joyce Felder, Melvin Sessa, and Armando Rodriguez. Pl. Opp'n, Ex. 32, Affidavit of Vivian Tydings at 8. Based on the panel's ratings, a list of twelve "best qualified" applicants was forwarded to Mr. Schultz, the selecting official. See id. Mr. Schultz believed the list was too long, so he reconvened Mr. Sessa, Mr. Rodriguez and Ms. Felder as a screening panel to shorten the list by conducting interviews of the applicants. Def. Mot., Ex. 12, Affidavit of Robert Schultz ("Schultz Aff.") at 5-6. Plaintiff was interviewed by the panel,*fn3 but when the panel narrowed the candidates for the position to four applicants, on January 9, 2001, plaintiff was not on the list given to Mr. Schultz. Pl. Opp'n, Ex. 31, Promotion Certificate. Angela Porter, an African-American female born on July 27, 1963, and already serving as an Executive Assistant elsewhere in the VA, was chosen for the position. Def. Statement ¶ 16; Pl. Opp'n, Ex. 31, Selecting Official's Endorsement.

VI. Plaintiff's Complaints

Besides these non-selections, during the period from 1995 through filing of this action on October 19, 2001, plaintiff has complained to her superiors several times claiming that she was being unfairly overlooked for promotion, and alleging discrimination and retaliation by the VA. See Oliver-Simon Decl. ¶ 23. Plaintiff initially complained to managers, including Ms. Felder, Mr. Cowles and others, in 1995 and 1996, expressing displeasure with her minimal role in the reorganization of OHRM and claiming that there was insufficient minority representation among the leadership of the reorganization. Id. The last meeting where these concerns were raised was between plaintiff and Eugene Brickhouse, one of her superiors, on September 11, 1996. Id. Besides complaints about the reorganization process, plaintiff also contacted an EEO counselor on April 29, 1999, following several non-selections, and filed an administrative complaint on June 17, 1999. See Def. Mot. for Partial Dismissal, Ex. 1, EEO Complaint. Plaintiff also contacted the EEO office on November 30, 2000, regarding non-selections subsequent to her initial complaint, and a second or amended complaint was filed on January 12, 2001. Id., Ex. 3 (amendment to EEO complaint).


I. Summary Judgment

Summary judgment is appropriate when the pleadings and the evidence demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party may successfully support its motion by "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. (quoting Fed.R.Civ.P. 56(c)).

In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant's statements as true and accept all evidence and make all inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the "mere existence of a scintilla of evidence" in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted). Summary judgment ...

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