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Olzie Perry v. Eric K. Shinseki

May 10, 2011


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff Olzie Perry was not promoted to the position of Chief of Operations of the National Cemetery Administration, Memorial Programs Service ("Service"), and now sues her long-time employer, the United States Department of Veterans Affairs ("VA"), alleging discrimination on the basis of race and gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and discrimination on the basis of age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 et seq. ("ADEA"). The VA has moved for summary judgment. For the reasons set forth below, the VA's motion will be granted.



Perry, a 51-year old African-American woman,*fn1 began her career with the VA in 1986, as a secretary. (Def.'s Statement of Material Facts ["SOMF"] ¶¶ 1, 3.) She currently works as a Program Analyst (a GS-13 level position) in the Service, a subdivision of the VA's National Cemetery Administration. (Id. ¶ 2.) Before joining the VA, she spent less than a year in the armed forces, before being discharged because of an injury. (Id. ¶ 29; Def.'s Mot. for Summ. J., Ex. 9, Supp. Dep. of Olzie L. Perry [Supp. Perry Dep.], at 13.)

The period relevant to this case begins in late 2000, when Perry was reporting to David Schettler, the Acting Director of the Service. (Pl.'s Opp'n to Def.'s Mot. for Summ. J. [Pl.'s Opp'n], Ex. 1, Decl. of Olzie Perry ["Perry Decl."] ¶ 7.) Perry worked as a Supervisory Management & Program Analyst at the time. (Id.) One of Perry's duties was to interview candidates for a position as a programs analyst. (Id. ¶ 10.) Although the position apparently reported to Perry (id. ¶ 11), the duties were that of a staff assistant to Schettler. (Pl.'s Opp'n, Ex. 24, Dep. of Lindee Lenox ["Lenox Dep.], at 62.) Perry was told by Schettler that Don Murphy, a Site Supervisor with the Service, had applied for the position and should be considered.*fn2 (Perry Decl. ¶¶ 7, 11.) Perry did not believe he "interviewed well," but Schettler recommended Murphy as "a good person for the job." (Id. ¶ 11-12.) Perry hired Murphy, based on this recommendation. (Id. ¶ 13.) After eight months, Schettler promoted Murphy to Program Specialist. (Id. ¶ 15.)

In June 2001, Schettler hired Lindee Lenox as the Chief of Operations. (Perry Decl. ¶ 16; Lenox Dep. at 71.) Perry had also applied for the job but was not hired. (Perry Decl. ¶ 16.) After Lenox became Chief, Perry began working directly for Schettler as a Quality Assurance and Improvement Specialist. (Id. ¶ 17.) She worked in this capacity from December 2002 until March 2005. (Id.) In March 2005, she went to work for Lenox, who had replaced Schettler as the Director of the Service. (Id. ¶ 18.) Lenox's promotion created a vacancy at the position of Chief of Operations. (Id.)

On December 9, 2005, Perry met with Lenox, a 52-year old Caucasian woman (Pl.'s Opp'n, Ex. 21, Agency's Mot. for Summ. J., at 4), for her annual performance review. (Supp. Perry Dep. at 153; Perry Decl. ¶ 20.) During the review, Perry mentioned to Lenox that she planned on applying for the Chief position. (Perry Decl. ¶ 20.) According to Perry, Lenox asked "when are you going to retire?" (Perry Dep. at 153.) When Perry asked Lenox why she wanted to know, Lenox replied "no particular reason."*fn3 (Perry Decl. ¶ 20.)

In February 2006, Perry, who was 51 at the time, applied for a position as the Chief of Operations Program Analysis Officer (a GS-14 level position) in the Cemetery Administration. (SOMF ¶ 3.) Rhonika Howard, a member of the Administration's human resources office,*fn4 reviewed the various applications for the position and determined that Perry and six others were minimally qualified. (Id. ¶ 4.) Howard was only involved for this part of the selection process and took no part afterward until Lenox formally selected Murphy. (Pl.'s Opp'n, Ex. 23, Dep. of Rhonika Howard ["Howard Dep."]at 60.) The applications were then passed on to Schettler, who Lenox picked as a "subject matter expert" and who was asked to rank the candidates' written responses. (SOMF¶ 5; Schettler Dep. at 22.) The parties do not dispute Schettler's method for ranking -- assigning points for responses to questions according to "Factor Quality Level" criteria (SOMF ¶ 5) -- although Perry alleges he "intentionally downgraded" her scores. (Pl.'s Resp. to Def.'s Undisputed Facts ["Pl.'s Resp."] ¶ 5.) Schettler arrived at four "best qualified" candidates: Murphy (Caucasian male, age 41), Perry (African-American female, age 51), Gina White (Caucasian female, age 42), and Wanza Lewis (African-American female, age 51). (Pl.'s Opp'n at 7.) Schettler awarded Murphy 23 points, White 21 points, Lewis 17 points, and Perry 21 points. (Def.'s Mot., Ex. C, Schettler Rankings, at 2.)

Perry and the other three candidates were then interviewed by a three-person panel, made up of Jimma Elliott-Stevens (38 years old, African-American, female), Deanna Wilson (50 years old, Caucasian, female) and George Eisenbach (48 years old, Caucasian, male). (SOMF ¶ 11.) Lenox picked the members of the panel. (See Pl.'s Opp'n, Ex. 25, Dep. of Jimma Elliott-Stevens ["Elliott-Stevens Dep."] at 25.) Lenox did not provide the panel with the application packets or other supplemental materials for the candidates. (Id. at 20.) Howard testified that it was the "practice" to "provide [packets] for all interviews." (Howard Dep. at 103.) Elliott-Stevens testified that it was "strange" not to have the package, but that "even when I have the applications, quite honestly, I don't review them the way other people do." (Elliott-Stevens Dep. at 20.) Eisenbach testified that having the packages would have saved "much needed time" by allowing the panel to skip "extract[ing]" the information from the candidates during the interview. (Pl.'s Opp'n, Ex. 26, Dep. of George Eisenbach ["Eisenbach Dep."] at 28.)

Elliott-Stevens testified that Murphy was the only candidate she was familiar with prior to the interview, and that "going into the panel, he was the person that [she] was probably rooting for, but just like any panelist should . . . , [she] based it solely on the record." (Elliott-Stevens Dep. at 66.) She stated that Murphy "did not come across strong in the interview," and that "[i]f [she] had not known him . . . [she] may have been a little bit more shocked" that he was picked, but that she knew his "work ethic and . . . what he was doing before he got the position[.]" (Id.) Elliott-Stevens also testified that she had been concerned that one of the questions seemed too "specific" and that, because White was the only one to answer the question, she had assumed that "if this were preselection, it was for Gina White[.]"*fn5 (Id. at 89.)

The panel awarded scores of 35/37,*fn6 41, and 35 to Perry. (Pl.'s Opp'n, Ex. 9.) Lewis received scores of 43, 41/43,*fn7 and 38.*fn8 (Pl.'s Opp'n, Ex. 10.) Murphy received scores of 41, 35, and 34.*fn9 (Pl.'s Opp'n, Ex. 11.) White received scores of 43, 40, and 45.*fn10 (Pl.'s Opp'n, Ex. 12.) Perry was the only candidate to receive a score for every response. The panel then submitted averaged scores to Lewis for her review, noting that White's average was 44.3, Lewis's was 43, Murphy's was 38.2, and Perry's was 36.8.*fn11 (Pl.'s Opp'n, Ex. 13, at 4.)

The panel recommended that Lenox interview White and Lewis.*fn12 (Id.) Eisenbach wrote that, although he felt Lewis and White were the best candidates, all the candidates "were very knowledgeable on the technical side" and "kn[e]w their contracting business." (Id. at 1.) However, he testified that he was "surprised" that Lenox did not interview or hire White or Lewis. (Eisenbach Dep. at 55.) Wilson agreed that the candidates were all "technically proficient," although she felt that Murphy did not have the "management expertise or ease with the situations that the others did," and that his answers were "not as strong . . . on several of the questions." (Pl.'s Opp'n, Ex. 13, at 2.) Wilson emphasized that Lewis was "very impressive." (Id.). Perry concedes that none of the interview panelists discriminated against her. (SOMF ¶ 33; Pl.'s Resp. ¶ 33.)

On March 10, 2006, Lenox picked Murphy to be the Chief and issued a memorandum listing the reasons why she chose Murphy over the other applicants. (Pl.'s Opp'n at 1; Pl.'s Opp'n, Ex. 14, Lenox Memorandum ["Lenox Memo"] at 2.) Lenox wrote that she had "personal knowledge" of both White and Murphy, whom she labeled the "final top two candidates" based on their combined scores. (Lenox Memo at 2.) Lenox praised Murphy's "even temperament," "people skills," "management style," experience with working from a "remote location," and his "'real world' technical, supervisory and communication skills." (Id.) She noted that he "ranked number two" behind White, but criticized White's "somewhat authoritarian" style and suggested White would "benefit from further leadership experience." (Id. at 2-3.) Lenox noted that Lewis lacked experience supervising work in a "remote" environment, and was not as well versed in the "technical complexities" of the job. (Id.) Lenox did not mention Perry until the final paragraph of her memo. (Id.) She observed that Perry "was not recommended" by the panel, "ranked lowest" in the combined ratings, and had a management style that was "not well suited" for the job.*fn13 (Id. at 3.)

Howard testified that it was "unusual" for the selecting official not to follow the recommendation of the panel, but that "[i]t has happened." (Howard Dep. at 108.) In addition, she testified that she had never seen a similar memorandum or write-up for a selectee during her time in the HR department. (Howard Dep. at 110.) She also stated that she had never seen scores from an interview panel added together with the scores from the subject matter expert. (Id. at 99-100.) Howard testified that she was not surprised that Murphy had been selected, based on her "observation" and "feeling that [she] had." (Howard Dep. at 86.) However, Howard conceded that Lenox had "made a selection from" the "best qualified" list." (Id. at 113.)

Lenox admitted that the selection was a "very difficult decision" because she wanted "personally" to do "everything I can to raise women into high-level positions," and felt it was "important for me to justify . . . pick[ing] a man over a woman." (Lenox Dep. at 140.) She testified that she had difficulty picking someone over White, who "was the top person on the list" and received the highest rankings from the interview panel. (Id. at 139-40.) Lenox denied ever having the impression that Schettler "was hoping" Murphy would be promoted. (Id. at 141.)

After Lenox selected Murphy, Schettler wrote Murphy an e-mail congratulating him. (Pl.'s Opp'n, Ex. 15.) The entire text of the e-mail read: "Congratulations Don. It was only a matter of time. It's well deserved and NCA will be well served with you in a higher leadership position." (Id.)


Perry filed a formal complaint with the VA's Office of Resolution Management on June 12, 2006. (Def.'s Mot. Ex. F, Complaint of Employment Discrimination.) Her complaint stated that she "believe[d] that [she] was significantly better qualified for" the position "than the younger white, male selected." (Id. at 1.) The VA's Office of Employment Discrimination Complaint Adjudication issued a Final Agency Decision on April 1, 2009, which found that Perry "failed to produce any persuasive evidence linking the actions of management . . . to her race, sex and age." (Def.'s Mot. Ex. G ["Final Agency Decision"] at 1.) Having exhausted her administrative remedies, Perry filed the instant suit on June 23, 2009. (Compl. ¶ 3; Answer ¶ 3.) The VA now moves for summary judgment.



A motion for summary judgment shall be granted "'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (quoting Fed. R. Civ.P. 56(c)). "A dispute about a material fact is not 'genuine' unless the 'evidence is such that a reasonable jury could return the verdict for the nonmoving party.'" Haynes v. Williams, 392 F.3d 478, 481 (D.C. Cir. 2004) (quoting Anderson, 477 U.S. at 248). Thus, a moving party is entitled to summary judgment "against 'a party who fails to make a showing sufficient to establish the existence of an element essential to that ...

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