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Shahin v. Lew

United States District Court, District of Columbia

March 19, 2015

NINA SHAHIN, Plaintiff,
JACOB J. LEW, Defendant.[1]


RICHARD J. LEON, District Judge.

This matter is before the Court on Defendant's Motion for Summary Judgment, [Dkt. # 49]. For the reasons discussed below, the motion will be GRANTED and plaintiffs case will be DISMISSED with prejudice.[2]


Plaintiff is a female citizen of the United States, see Mem. of P. & A. in Support of Def.'s Mot. for Summ. J., [Dkt. #49-1] ("Def.'s Mem."), Ex. K ("Pl.'s Dep.") at 5:18, who "was bom[, ] raised and educated in Ukraine, " Pl.'s Dep. at 6:13-16, and who at all times relevant to the complaint was more than 40 years of age, see id. at 6:1-9. Generally, she alleges that she applied, but was not selected, for a Supervisory Tax Analyst position with the Internal Revenue Service ("IRS") because of her national origin, sex, and age. See Am. Compl. ¶¶ 10-11 [Dkt. #6]. She brings this action under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. Am. Compl. ¶ 1.

In February 2009, the IRS posted a Vacancy Announcement for the position of Supervisory Tax Analyst in Wage & Investment, Customer Assistance Relationship & Education, Media & Publications, Tax Forms & Publications, TE/GE and Specialty Forms and Publications, Special Products, in Washington, D.C. See Def.'s Mem., Ex. A (Job Announcement Number 09AN3-WIE0080-0501-IR-04) at 1-2 [Dkt. #49-3]. This posting was directed at external candidates; the IRS also posted an internal Vacancy Announcement for this same position, listing the same application requirements. See Def.'s Mem., Ex. A at 2-3; see also Def.'s Mem., Ex. J (referencing Announcement # 40-41-9MPT042) [Dkt. #49-3].

A Supervisory Tax Analyst is "a first level supervisor with managerial responsibilities and authorities for oversight and direction of program and administrative activities that involve [IRS-wide] financial standards, policies, and procedures for revenue financial operations and reporting." Def.'s Mem., Ex. A at 1-2. Among other qualifications, the applicant must "have at least one year of specialized experience equivalent to the GS-13 level in a position close to the work of this job that has given [the applicant] the particular knowledge, skills, and abilities to successfully perform." Def.'s Mem., Ex. A at 3. The applicant must submit, in addition to her resume, "a narrative statement addressing the technical and leadership competencies" listed in the Vacancy Announcement. Def.'s Mem., Ex. A at 4. The Vacancy Announcement advised applicants that they would not be considered for the position if they failed to submit the narrative statement addressing the competencies specified in the job posting. Def.'s Mem., Ex. A at 4.

Plaintiff applied for the Supervisory Tax Analyst position in February 2009, Def.'s Mem., Ex. B (Hilaire Decl. dated Oct. 27, 2011) ¶ 3 [Dkt. #49-3], by submitting a onepage resume online, Def.'s Mem., Ex. D (resume) [Dkt. #49-3], see Pl.'s Dep. at 17:12-13. Plaintiffs resume indicated that she earned a Master's Degree in Taxation in 2003, a Master's Degree in Accounting in 1995, and a Bachelor's Degree in Accounting in 1991. Def.'s Mem., Ex. D; see Pl.'s Dep. at 11:5-21. It further indicated that plaintiff spoke Russian. Def.'s Mem., Ex. D. Plaintiffs work experience consisted of two positions: she managed a free tax preparation site from January 2008 through April 2008, and she was a tax consultant from January 2005 through September 2005. Def.'s Mem., Ex. D; see also Pl.'s Dep. at 8:22-9:14. The application did not include a narrative statement.[3]

"[B]ased on the documentation that was submitted with her application, " the Agency determined that plaintiff "did not meet the minimum education [and] experience requirements for the position." Def.'s Mem., Ex. B ¶ 4; see Def.'s Mem., Ex. E (Notice of Rating to plaintiff from External Employment Section III, IRS, dated Mar. 13, 2009). Specifically, plaintiff "did not have at least one full year of full-time work experience as a Tax Analyst or [in a] related position at the next lower level to the Supervisory Tax Analyst IR-04 on her resume." Def.'s Mem., Ex. B at 2. The Human Resources Specialist who reviewed plaintiffs application averred that her "application material... did not include any information regarding [her] national origin and/or age, " and that the "qualification determination [was not] based on [plaintiffs] national origin and/or age." Def.'s Mem., Ex. B at 2.

Although some of the external candidates were found eligible for the position, none was ultimately selected. Def.'s Mem., Ex. L at 5. The selecting official instead chose "an internal applicant for the position." Def.'s Mem., Ex. B ¶ 4. The successful candidate, whose application included a narrative statement addressing the technical and leadership competencies set forth in the Vacancy Announcement, was a Mexican-American male under 40 years of age. See generally Def.'s Mem., Ex. I (Promotion Certificate dated Mar. 29, 2009). He had been hired as a Tax Law Specialist in the Tax Forms and Publications Division in 2001, had held a position in the Special Products Section of the TE/GE & Specialty Forms & Publications Branch, had worked as a Tax Analyst from 2006 until his selection for the Supervisory Tax Analyst position in 2009, and had served as a Supervisory Tax Analyst for short periods in 2003, 2004, 2007 and 2008. See generally Def.'s Mem., Ex. J (Management Selection Program Vacancy Application) at 1. The external "[V]acancy [A]nnouncement number 09AN3-WIE0080-0501-IR04 was cancelled because the selecting official selected an internal IRS applicant for the position, " Def.'s Mem., Ex. B at 4, and plaintiff was notified of the cancellation, Def.'s Mem., Ex. H (Letter to Applicant from External Employment Section III).

Thereafter, plaintiff filed an Equal Employment Opportunity ("EEO") complaint, alleging employment discrimination on the basis of her age and national origin. Am. Compl. Ex. at 1. On April 2, 2010, the Agency issued a final decision, denying plaintiffs claims. Am. Compl. Ex. at 1. On April 27, 2010, plaintiff filed an appeal with the EEOC, challenging the Agency's finding. Am. Compl. Ex. at 1. On September 21, 2010, the EEOC affirmed the agency's final decision and denied plaintiffs discrimination claims. Am. Compl. Ex. at 1. Plaintiff commenced the instant action on November 9, 2010. See Compl. [Dkt. #2]. Presently before the Court are the parties' Cross-Motions for Summary Judgment.


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A party asserting that a fact either cannot be, or is, genuinely disputed must support its assertion by "citing to particular parts of materials in the record, including depositions, documents... affidavits or declarations, stipulations..., admissions, [or] interrogatory answers[, or by] showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e).

When considering a motion for summary judgment, the Court may not make credibility determinations or weigh the evidence; the evidence must be analyzed in the light most favorable to the nonmoving party, with all justifiable inferences drawn in her favor. See Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986). "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (citation omitted). The mere existence of a factual dispute does not bar summary judgment. See Anderson, All U.S. at 248. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. In the case of employment discrimination claims, "bare allegations of discrimination are insufficient to defeat a properly supported motion for summary judgment." Burke v. Gould, 286 F.3d 513, 520 (D.C. Cir. 2002). The adverse party must "do more than simply show that there is some metaphysical doubt as to the material facts, " ...

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