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Atanus v. Sebelius

September 10, 2009

SUSANNE ATANUS, PLAINTIFF,
v.
KATHLEEN SEBELIUS,*FN1 SECRETARY, U.S. DEP'T OF HEALTH & HUMAN SERVS., DEFENDANT.



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

MEMORANDUM OPINION

Plaintiff Susanne Atanus, an applicant for employment at the United States Department of Health and Human Services ("HHS"), brings this employment discrimination and retaliation suit against defendant Kathleen Sebelius in her official capacity as secretary of HHS. Defendant's motion for summary judgment is now before the Court. Upon consideration of defendant's motion, the parties' memoranda, and the entire record herein, the motion will be granted.

BACKGROUND

On August 13, 2004, plaintiff sought employment with HHS as a writer/editor. See Pl. Application (attached as Pl. Opp'n Ex. G).*fn2 HHS uses the Quickhire system to process applications, which permits applicants to respond to multiple-choice questions and then generates a numerical score on the basis of the responses, including preference points for veterans. See Vacancy Information (attached as Def. Mem. Ex. 8); Dep. of Donna Thomas at 60 (attached as Def. Mem. Ex. 25). The Quickhire system also contains spaces for a resume and for written answers, which supplement the multiple-choice responses but do not factor into the numerical score. Donna Thomas Equal Employment Opportunity ("EEO") Aff. at 3 (attached as Def. Mem. Ex. 5). Plaintiff's Quickhire application included written responses and a resume. See EEO Aff. of Susanne Atanus at 3 (attached as Def. Mem. Ex. 4); Pl. Application.

Three methods of consideration were available for the job vacancy: the Delegated Examining process ("DE"), the Merit Promotion process ("MP"), and the Non-Competitive process ("NC"). Vacancy Information at 8-9. The DE process was open to all individuals regardless of federal employment history, and the HR specialist produced a "certificate of eligibles" list of the top applicants for further consideration on the basis of their Quickhire scores. See id.; EEO Affs. of Melinda Bing at 2-3 (attached as Pl. Opp'n Ex. F). The MP process involved selecting the best-qualified applicants either currently working in the competitive federal service or having reinstatement eligibility. Vacancy Information at 8. Applicants were eligible for NC consideration if they were basically qualified and had served in a government position with equivalent or higher promotion potential than the job sought, which was GS-12 for the writer/editor position. Id. at 8-9.

Plaintiff's application requested consideration under the DE process only, see Pl. Application at 5, even though she submitted an SF-50 form in a timely manner indicating just under nineteen years previous federal government employment at the General Services Administration ("GSA"), Pl. SF-50 form (attached as Pl. Opp'n Ex. H). Due to HHS error, the SF-50 form was not included in plaintiff's application packet. EEO Investigation Report at 3-4, 6 (attached as Pl. Opp'n Ex. C). At one point in her application, plaintiff also claimed eligibility for the Outstanding Scholar Program, but she noted at another point that she was not eligible for that program. See Pl. Application at 2-3.

Plaintiff scored a 92.20 through the Quickhire system and was not placed on the list of eligible candidates under the DE process, for which the cutoff was 96.10. Compl. at 2; Thomas EEO Aff. at 4. Melinda Bing, a human resources ("HR") specialist, prepared the list of eligible candidates. Bing EEO Affs. at 2. After not being selected for the writer/editor position, plaintiff contacted Eileen Gomsi*fn3 and David Shorts, an EEO Director at HHS. See Atanus EEO Aff. at 2. When the misplacement of the SF-50 became apparent, Bing again reviewed plaintiff's file. Bing determined that even if plaintiff had been considered under the MP process, she would not have been selected because her experience on her resume did not support her Quickhire responses. Bing EEO Affs. at 7.

Plaintiff filed a formal EEO complaint claiming that HHS discriminated against her because of her race (Caucasian), color (white), national origin (second generation Assyrian), sex (female), religion (Christian/Catholic), and age (born December 7, 1958). EEO Order at 4 (attached as Def. Mem. Ex. 2). Plaintiff also claimed that HHS did not hire her in retaliation for having pursued an EEO action against GSA.*fn4 Id. Her complaint in the instant matter also alleges that HHS discriminated against her because she is not a veteran. Compl. at 1. The Equal Employment Opportunity Commission granted judgment in favor of defendant on March 16, 2006, see EEO Order, and plaintiff filed suit in this Court on June 13, 2006.

STANDARD

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 movant 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 identifying those portions of "the pleadings, the discovery and disclosure materials on file, and any affidavits" which it believes demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(c); see Celotex, 477 U.S. at 323.

In determining whether there is 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 (citations omitted). Summary judgment is appropriate if the non-movant fails to offer "evidence on which the jury could reasonably find for the [non-movant]." Id. at 252.

ANALYSIS

I. Plaintiff's Discrimination Claims

A. Title VII and ADEA ...


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