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Vines v. Gates

September 17, 2008

JANICE VINES, PLAINTIFF,
v.
ROBERT GATES,*FN1 SECRETARY OF THE DEPARTMENT OF DEFENSE, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, Janice Vines, brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000(e), et seq., alleging discrimination on the basis of race, sex, color, and national origin, and for retaliation resulting from her participation in protected activity. Complaint ("Compl.") ¶¶ 2, 52. Specifically, the plaintiff alleges that she was discriminated against on the basis of her race (black), sex (female), and her national origin (African American) when she was not selected for the GS-343-5/11 Program Analyst position with the Naval Facilities Engineering Services Center of the Department of the Navy ("NFESC") and for other positions to which she had been detailed during her employment by the NFESC. Compl. ¶¶ 53, 57. In addition, the plaintiff alleges that Ms. Edith Dawn Smith and Ms. Susan M. Kirk retaliated against her by verbally attacking her and the defendant took no action to correct or prevent the retaliation by failing to relocate her to a different work location. Compl. ¶¶ 63, 64. Currently before this Court are: (1) the defendant's Motion for Summary Judgment ("Def.'s Mot."); (2) the plaintiff's Opposition to the Defendant's Motion for Summary Judgment ("Pl.'s Opp'n"); and (3) the defendant's Reply in Support of Motion for Summary Judgment. ("Def.'s Reply Mem.").

I. Factual Background*fn2

A. Program Analyst Position (GS-343-5/11)

The plaintiff has been employed by the NFESC for over thirteen years. Compl. ¶6. On or about August 22, 2002, the NFESC issued a Vacancy Announcement for a GS-343-5/11 Program Analyst position with the East Coast Detachment Financial Division (ESC13) of the NFESC. Def.'s Mot., Exhibit ("Ex.") 2 (Upward Mobility Program Training Opportunity Announcement) ("Upward Mobility Announcement"). On October 30, 2002, a noncompetitive certificate was issued indicating that two people applied for the GS-343-5/11 Program Analyst position, the plaintiff and Linda Curatolo, a Caucasian female. Def.'s Mot., Ex. 3 (Noncompetitive Certificate for GS-343-5/11 Program Analyst) ("Noncompetitive Certificate"). Steven Robert Marshall, the Financial Manager/Comptroller and the selecting official, received the two application packages and convened a panel to review the resumes and interview the candidates. Def.'s Reply, Ex. 3 (Steven Robert Marshall Deposition ) ("Marshall Dep.") at 6.

The interviewing panel consisted of James Flynn, Keith Kirkpatrick, Sr., Commander Robin Noyes, and Edith Dawn Smith. Id., Ex. 4 (Grading for Program Analyst GS-343-05/07/09/11 Position); Ex. 5 (Affidavit of Edith Dawn Smith) ("Smith Aff.) at 419-20. Only Mr. Flynn, Mr. Kirkpatrick, and Commander Noyes were voting members of the panel. Id. The panel members were chosen by Mr. Marshall based on their perceived independence and objectivity. Def.'s Reply, Ex. 3 (Marshall Dep.) at 15. When the panel members were selected by Mr. Marshall he did not believe any of them had any conflicts of interest. Id. at 57:3-9. He was aware of an employment related relationship between Ms. Smith and Ms. Curatolo, and he believed that Ms. Smith and the plaintiff were friends. Id. at 74-75.

Identical questions for each candidate were developed prior to the commencement of their interviews. Id. at 19:10-13. Ms. Smith's participation in the interviews, asking the candidates questions from these pre-selected questions. Id., Ex. 5 (Declaration of Edith Dawn Smith) ("Smith Decl.") at 5-6; Id., Ex. 6 (Declaration of Keith Kirkpatrick, Sr.) ("Kirkpatrick Decl.") at 6; Def.'s Mot., Ex. 7 (Declaration of Robin Noyes) ("Noyes Decl.") at 7. Additionally, the panel members asked additional questions about the candidates' experiences and qualifications for the job. Def.'s Reply, Ex. 6 (Kirkpatrick Decl.) at 6. The panel based their grading of the candidates on their assessment of their resumes, interviews, and qualifications. Id., Ex. 4 (Grading for Program Analyst GS-343-05/07/09/11); Ex. 6 (Kirkpatrick Decl.) at p. 6. No inappropriate comments were made by the panel members about the candidates during the selection process, including comments about their race, color, gender, or ethnicity. Def.'s Reply, Ex. 6 (Kirkpatrick Decl.) at 6; Ex. 8 (Noyes Decl.) at 8. The panel gave each candidate scores of 198. Def.'s Reply, Ex. 4 (Grading for Program Analyst GS-343-05/07/09/11 Position). Thus, the panel's recommendation to the selecting official was that both candidates were equally qualified for the position. Id., Ex. 7 (Declaration of James Flynn) ("Flynn Decl.") at 5. However, although Ms. Smith was not a voting member on the panel, she raised questions with Mr. Marshall about the accuracy of the plaintiff's resume. Id., Ex. 1 (Marshall Dep.) at 38, 47, 50, 53, 68-69, 83.

Since each candidate received equal ratings by the panel, Mr. Marshall took the additional step of speaking to each candidates' supervisor to gain further information and clarification about the information contained on their resumes. Id., Ex. 3 (Marshall Dep.) at 7-8, 64. Mr. Marshall contacted Captain David Bulk in regards to Ms. Curatolo, and Mr. Raecke in regards to the plaintiff. Id., Ex. 8 (Marshall Dep.) at 6. By speaking to the supervisors, Mr. Marshall gathered information pertaining to each of the candidates' work habits, the work they performed, and the quality of their performance. Id., Ex. 3 (Marshall Dep.) at 7.

Based on the conversations Mr. Marshall had with the candidates' supervisors and the panel members, his review of their resumes and interview scores, he selected Ms. Curatolo for the GS-343-05/11 Program Analyst position. Id., Ex. 3 (Marshall Dep.) at 7-8, 64. In deciding to choose Ms. Curatolo for the position, Mr. Marshall believed after speaking to the plaintiff's supervisor that the plaintiff had embellished her resume, which caused Mr. Marshall to call into question her qualifications. Def.'s Reply, Ex. 3 (Marshall Dep.) at 7-8, 64. Specifically, Mr. Marshall contends that his consultation with the plaintiff's supervisor (Mr. Raecke) caused him to conclude that she "did not perform all of the functions that she had stated in her resume." Id.

This caused Mr. Marshall to question the accuracy of the plaintiff's resume. Id. at 64.*fn3

Following her non-selection, the plaintiff sought informal Equal Employment Opportunity ("EEO") counseling on December 6, 2002. Def.'s Mot., Ex. 6 (Washington D.C. Field Office ORM Initial Interview Sheet). In her administrative complaint, she alleged only that the selection of Ms. Curatolo for the Program Analyst position was discriminatory, and confirmed that she had never before filed an EEO complaint relating to non-selection for other positions with the defendant. Id. at 1-2.

B. Allegations Concerning Disputes Between the Plaintiff and Her Co-workers

Throughout the course of her employment, the plaintiff had several verbal altercations with Dawn Smith and Susan Kirk. Compl. ¶¶ 40, 44, 46. The plaintiff has never filed an EEO complaint relating to these alleged verbal altercations and the incidents were not included in her EEO complaint that was filed with the Washington Field Office in December 2002. Def.'s Mot., Ex. 1 (March 21, 2006 Order), Ex. 4 (Defendant's Requests for Admissions to Plaintiff Nos. 5-7), Ex. 6 (Washington D.C. Field Office ORM Initial Interview Sheet). One of the verbal altercations between the plaintiff and Ms. Kirk occurred in April 2003, resulting in Commander Noyes intervening and attempting to defuse the situation by talking with them about the topic of the altercation--a problem related to the time cards. Def.'s Mot., Ex. 7 (Affidavit of Commander Robin Noyes) ("Noyes Aff.") at 13. However, this incident has no connection to any protected activity engaged in by the plaintiff. Def.'s Mot., Ex. 1 (March 21, 2006 Order), Ex. 4 (Defendant's Requests for Admissions to Plaintiff No. 5).

On August 26, 2003, the plaintiff and Ms. Smith participated in the transmission of a series of emails pertaining to the proper process for making purchasing requests. Id., Ex. 8 (Emails dated August 26, 2003). Although the emails demonstrate that there was friction between the plaintiff and Ms. Smith, Ms. Smith's response to the plaintiff's emails has no relation to the plaintiff's prior EEO complaint. Id., Ex. 1 (March 21, 2006 Order), Ex. 4 (Defendant's Requests for Admissions to Plaintiff No. 7). In addition, although the plaintiff alleges that Ms. Smith verbally attacked her on September 4, 2003, when the plaintiff asked Ms. Smith to date a purchase order, Compl. ¶ 46, and the plaintiff alleges that Ms. Smith became angry and was speaking in a loud and hostile tone, this altercation also has no relationship to the plaintiff's prior EEO complaint filed on December 6, 2002. Def.'s Mot., Ex. 1 (March 21, 2006 Order), Ex. 4 (Defendant's Requests for Admissions to Plaintiff No. 6).

As a result of the plaintiff's verbal altercations with Ms. Smith and Ms. Kirk, the plaintiff requested that she be assigned a different work location. Compl. ΒΆ 49. However, because the plaintiff's duties included receptionist type responsibilities, she had to be stationed near the entrance door of the office where she worked. Def.'s Mot., Ex. 5 (Raecke Aff.) at 5. Accordingly, the defendant moved Ms. Smith's and Ms. Curatolo's work stations approximately 100 to 120 feet away from the plaintiff's location to accommodate ...


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