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Thompson v. McDonald

United States District Court, District of Columbia

March 14, 2016

JOANN THOMPSON, Plaintiff,
v.
ROBERT A. MCDONALD, Secretary of Veterans Affairs, Defendant. Re Document No. 34

MEMORANDUM OPINION GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Plaintiff Joann Thompson is an employee of the Readjustment Counseling Service of the United States Department of Veterans Affairs (VA). After Ms. Thompson’s supervisor chose a younger white male instead of herself for promotion, she sued the VA through its Secretary.[1]Ms. Thompson brought race, sex, and age discrimination claims, as well as retaliation claims, under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (ADEA).

Because Ms. Thompson seeks voluntary dismissal of her retaliation claims, the Court will dismiss those claims. And because no reasonable juror could find that the VA intentionally discriminated against Ms. Thompson on the basis of race, sex, or age, the Court will grant the government’s motion for summary judgment.[2]

II. BACKGROUND

A. The Readjustment Counseling Service

The Readjustment Counseling Service is a division of the Veterans Health Administration within the United States Department of Veterans Affairs (VA). See 38 U.S.C. § 7309(a). The Service provides counseling to veterans readjusting to civilian life and to family members of military personnel. See Id. § 1712A. Within the Service, “Vet Centers” are small units of three to five staff members, which may include social workers, clinical psychologists, clinical nurses, counseling therapists, and administrative staff members. See Def.’s Statement of Material Facts ¶ 9, ECF No. 36 [hereinafter Def.’s Statement]; Pl.’s Statement of Material Facts ¶ 9, ECF No. 40-1 [hereinafter Pl.’s Statement]. A Team Leader directs each Vet Center and supervises the Vet Center’s staff. See Pl.’s Ex. B, ¶ 4.02.a-b, ECF No. 40-3 (discussing Team Leaders). The Service uses Vet Centers as a principal means of delivering its counseling services. See Pl.’s Ex. B, ¶ 4.04.a, ECF No. 40-3 (discussing Vet Centers and their role).

The Service has a Chief Officer who is its national director and who has oversight of all the Vet Centers nationwide. 38 U.S.C. § 7309(b), (c)(3). In 2009, the year of the events relevant to this case, Alfonso Batres was the Service’s Chief Officer. See Luper Suppl. Decl. Ex. G, ECF No. 34-12 (displaying “Chief Officer” below Mr. Batres’s name on the memorandum approving Dale Willis’s selection as Deputy Regional Manager, over Ms. Thompson); see also Thompson Dep. 19:14-21:20, ECF No. 34-4 (indicating that Mr. Batres was Chief Officer).

Under the Chief Officer, the Service subdivides into seven regions, each managed by a Regional Manager, who receives assistance from a Deputy Regional Manager. Def.’s Statement ¶ 5; Pl.’s Statement ¶ 5. In 2009, Region 1B of the Service encompassed thirty-two Vet Centers spanning eight states and the District of Columbia. Def.’s Statement ¶ 7; Pl.’s Statement ¶ 7; Willis Decl. ¶ 2, ECF No. 34-13. Terry Luper was Region 1B’s Regional Manager in 2009. Luper Suppl. Decl. ¶ 1, ECF No. 34-11. When Mr. Luper became Regional Manager in 2008, he vacated his previous position as Region 1B’s Deputy Regional Manager. Def.’s Statement ¶ 6; Pl.’s Statement ¶ 6.

B. Deputy Regional Manager Vacancy

In December 2008, Mr. Luper contacted the VA’s human resources staff to begin the recruiting process for Region 1B’s Deputy Regional Manager. Luper Suppl. Decl. ¶ 2; see Id. Ex. A (reproducing Mr. Luper’s memorandum to the VA’s human resources staff). The VA accordingly released a vacancy announcement on January 22, 2009, with a closing date of February 13, 2009. Def.’s Statement ¶ 23; Pl.’s Statement ¶ 23; Def.’s Ex. 1, ECF No. 34-2 (reproducing the vacancy announcement). Mr. Luper was the selecting official for this vacancy. Thompson Decl. ¶ 68, ECF No. 34-8; see also Pl.’s Ex. T, ¶ 11.a, ECF No. 40-3 (indicating, in paragraphs under the heading “Selection, ” that the selecting official is the “Chief of the Service” by default, but noting that “[s]election may be made at a lower level of supervision when authority is specifically delegated”); Luper Suppl. Decl. Ex. G, ECF No. 34-12 (showing that Mr. Batres was the approving official, not the selecting official, for Dale Willis’s selection as Deputy Regional Manager, over Ms. Thompson).

C. Deputy Regional Manager Candidates

After the vacancy announcement closed, Edna Lepe, a VA human resources employee, collected all the applications and assessed whether the candidates met the minimum qualifications for the Deputy Regional Manager position. Lepe Decl. ¶ 44, ECF No. 34-14. Although eight candidates applied for the position, only three met the job’s minimum qualifications: Plaintiff Joann Thompson, Sharon Sprecher, and Dale Willis. See Def.’s Ex. 3, ECF No. 34-2; Pl.’s Ex. M, ECF No. 40-3. Ms. Lepe forwarded those three candidates’ materials on to Mr. Luper for consideration. Def.’s Statement ¶ 32; Pl.’s Statement ¶ 32. Because he directly supervised all three candidates, Mr. Luper knew each of the three candidates well. Def.’s Statement ¶ 51; Pl.’s Statement ¶ 51.

1. Joann Thompson

Plaintiff Joann Thompson is an African-American female. Def.’s Statement ¶ 1; Pl.’s Statement ¶ 1. In 2009, Ms. Thompson was fifty-seven years old. Def.’s Statement ¶ 2; Pl.’s Statement ¶ 2.

Ms. Thompson applied for the Deputy Regional Manager position on February 13, 2009. Def.’s Statement ¶ 28; Pl.’s Statement ¶ 28. At the time, she worked in the Readjustment Counseling Service as a Team Leader for the Vet Center in Washington, D.C. Def.’s Statement ¶ 8; Pl.’s Statement ¶ 8. In that capacity, Ms. Thompson supervised two other counselors and a small staff. Def.’s Statement ¶ 12; Pl.’s Statement ¶ 12. She also exercised responsibility for the Vet Center’s overall operations, evaluated her staff’s performance, defined the Vet Center’s mission and scope, and provided outreach to other VA branches. Pl.’s Counter-Statement of Material Facts ¶ 5, ECF No. 40-1 [hereinafter Pl.’s Counter-Statement]; Def.’s Reply to Pl.’s Counter-Statement ¶ 5, ECF No. 44-2 [hereinafter Def.’s Reply Statement].

2. Dale Willis

Dale Willis is a white male. Compl. ¶ 15, ECF No. 1; Answer ¶ 15, ECF No. 10. The VA’s human resources staff received Mr. Willis’s application on February 10, 2009. See Luper Suppl. Decl. Ex. G, ECF 34-12 (reproducing Mr. Willis’s application, which bears a stamp showing it was received on February 10, 2009). Mr. Willis was in his early forties at the time. Compl. ¶ 15; Pl.’s Counter-Statement ¶ 23; see also Luper Decl. ¶ 50, ECF No. 34-10 (indicating that Mr. Willis was forty-four around the time of his application); Lepe Decl. ¶ 47 (noting that Mr. Willis’s date of birth is in 1965).

When he applied to be Deputy Regional Manager, Mr. Willis was one of Region 1B’s two Associate Regional Managers for Counseling. Def.’s Statement ¶ 13; Pl.’s Statement ¶ 13; Pl.’s Ex. D, ECF No. 40-3 (showing that Mr. Willis was one of two people who had the job title “ARM/Counseling”). In that role, Mr. Willis was “charged with clinical oversight of all Vet Centers in the Region.” Pl.’s Ex. C, ¶ 1, ECF No. 40-3; accord Def.’s Statement ¶ 16. Mr. Willis conducted annual Vet Center site visits to provide consultation, clinical inspection, and quality review. Def.’s Statement ¶ 17; Pl.’s Statement ¶ 17. “[T]hese quality assurance activities extend[ed] to the assessment, training, supervision and guidance of vet center clinical staff.” Pl.’s Ex. C, ¶ 1; accord Def.’s Statement ¶¶ 16-19.

At the time of his application, however, Mr. Willis was deployed in the Middle East as a captain in his Pennsylvania Army Reserve Component Unit. See Suppl. Luper Ex. G, ECF No. 34-12 (noting Mr. Willis’s status in the cover memorandum, and reproducing Mr. Willis’s military orders in an attachment); see also Pl.’s Ex. F, ECF No. 40-3 (showing discussion of Mr. Willis’s status in emails between Mr. Luper and Mr. Willis). Mr. Willis received notice of the Deputy Regional Manager vacancy announcement through Mr. Luper, who sent Mr. Willis a copy of the announcement. See Pl.’s Ex. F. To submit his application, Mr. Willis emailed his application materials to Mr. Luper, who agreed to mail them to the VA’s human resources staff. See id.

3. Sharon Sprecher

Sharon Sprecher also applied to be Deputy Regional Manager. See Def.’s Statement ¶ 32; Pl.’s Statement ¶ 32. At the time, Ms. Sprecher was an Associate Regional Manager for Counseling in Region 1B, like Mr. Willis. Def.’s Statement ¶ 33; Pl.’s Statement ¶ 33; Pl.’s Ex. D, ECF No. 40-3 (showing that Ms. Sprecher, like Mr. Willis, had the job title “ARM/Counseling”).

D. Deputy Regional Manager Selection Process

Mr. Luper selected Mr. Willis to be Deputy Regional Manager. Def.’s Statement ¶ 50; Thompson Decl. ¶ 87, ECF No. 34-8. According to Mr. Luper, the selection derived from a process in which Mr. Luper reviewed the candidates’ applications, interviewed the candidates, and scored both the applications and the interviews. See Luper Suppl. Decl. ¶¶ 5-22, ECF No. 34-11. Because Mr. Willis received the highest total score at the end of this process, Mr. Luper chose him to be Deputy Regional Manager. See Id. ¶¶ 21-22.

The three candidates’ applications included each candidate’s

(1) resume or federal employment application form;
(2) descriptions of experience and accomplishments related to the “knowledge, skills and abilities” (KSAs) listed on the Deputy Regional Manager vacancy announcement, see Def.’s Ex. 1, ECF No. 34-2; and
(3) most recent performance appraisal.

See Def.’s Ex. 1, ECF No. 34-2 (describing, in sections titled “Basis for Rating” and “How to Apply, ” how candidates should apply for the Deputy Regional Manager position); see, e.g., Def.’s Ex. 2, ECF No. 34-2 (reproducing Ms. Thompson’s application); Luper Suppl. Decl. Ex. G, ECF No. 34-12 (reproducing Mr. Willis’s application).

Mr. Luper claims he conducted interviews of the applicants on the same day. Luper Suppl. Decl. ¶ 15; see also Id. Ex. D, ECF No. 34-11 (showing that two of Mr. Luper’s interview scoring sheets were dated March 23, 2009). At least for Ms. Thompson, Mr. Luper’s interview took the form of a brief phone call. Pl.’s Counter-Statement ¶ 31. During the interviews, Mr. Luper asked each of the candidates the same five questions, which Mr. Luper developed based on the KSAs for the Deputy Regional Manager position. Luper Suppl. Decl. ¶ 15; see Id. Ex. D (reproducing Mr. Luper’s interview questions).

To select the Deputy Regional Manager, Mr. Luper used a scoring process that numerically evaluated

(1) how well, based on the candidates’ application packages and the Deputy Regional Manager position description, each candidate would fulfill the duties of the Deputy Regional Manager;
(2) the candidates’ descriptions of experience and accomplishments related to the KSAs for Deputy Regional Manager, see Def.’s Ex. 1, ECF No. 34-2;
(3) the candidates’ responses to the five interview questions;
(4) the candidates’ administrative experience; and
(5) the candidates’ veteran status.

See Id. ¶¶ 6-20. For each item on the position description and each element of the KSAs, the candidates received one, three, or five points (five being most desirable). See Id. ¶¶ 6-12; see also Id. Exs. B-C, ECF No. 34-11 (reproducing Mr. Luper’s scoring sheets for the items on the position description and the KSA elements). Likewise, Mr. Luper gave each candidate’s response to each interview question a score between one and five. See Id. ¶¶ 13-17; see also Id. Ex. D, ECF No. 34-11 (reproducing Mr. Luper’s scoring sheets for the candidates’ interviews). Finally, each candidate received one, three, or five points for administrative experience, and zero or five points for the absence or presence of veteran status. See Id. ¶¶ 18-20; see also Id. Ex. E, ECF No. 34-11 (reproducing Mr. Luper’s scoring sheet for administrative experience); id. Ex. F, ECF No. 34-12 (showing scores awarded for veteran status).

Under Mr. Luper’s scoring system, Mr. Willis received 131 points in total, Ms. Sprecher received 119, and Ms. Thompson received 88. See Id. ¶ 21, ECF No. 34-11; see also Id. Ex. F, ECF No. 34-12 (showing the total points awarded to each candidate and the points summed to obtain those totals). Based on Mr. Willis’s high total points and “other factors” that led Mr. Luper to believe Mr. Willis was the most qualified candidate, Mr. Luper selected Mr. Willis for Deputy Regional Manager. Luper Suppl. Decl. ¶ 22, ECF No. 34-11; see also Luper Decl. ¶¶ 69-70, ECF No. 34-10 (noting Mr. Willis’s “broad knowledge base of regional office functions” and other relevant experience). On March 25, 2009, Mr. Luper forwarded his selection to Mr. Batres for approval. Luper Suppl. Decl. ¶ 24, ECF No. 34-11; see also Id. Ex. G, ECF No. 34-12 (reproducing Mr. Luper’s memorandum addressed to Mr. Batres).

According to Mr. Luper, he evaluated the three candidates’ applications without anyone else’s input. Luper Suppl. Decl. ¶ 25, ECF No. 34-11. He claims that he spoke with Mr. Batres about Mr. Willis’s selection only after he made that selection. Id.

In a conversation after Mr. Luper selected Mr. Willis, Mr. Batres and Mr. Luper discussed the selection. See Id. According to Mr. Batres, they discussed Mr. Willis’s military deployment, whether selecting Mr. Willis in this situation would violate any known policies, and whether selecting Mr. Willis would impact the regional office’s functioning. Batres 2011 Dep. 46:15-48:1, ECF No. 34-6; Batres 2014 Dep. 51:11-22, ECF No. 34-7. Although Mr. Willis would not return to the United States until September 2009, Mr. Luper was confident that delaying Mr. Willis’s service until then would not impact the regional office’s functioning. Luper Suppl. Decl. ¶ 27, ECF No. 34-11. Mr. Luper, who had been Deputy Regional Manager until he was promoted to Regional Manager in June 2008, had continued to perform the Deputy Regional Manager’s duties after he was promoted. Id. He was comfortable continuing to do both jobs until September 2009. Id.

Mr. Batres recalls that he then assured Mr. Luper that the VA could hold the position for Mr. Willis until he returned from his military deployment, and that “[i]t was not against the law.” Batres 2011 Dep. 47:20-48:1. Mr. Batres then approved Mr. Luper’s selection. See Luper Suppl. Decl. Ex. G, ECF No. 34-12 (showing that Mr. Batres approved of the selection, and displaying the confirming signature of his program analyst, Greg Harms); see also Pl.’s Ex. H, at 13:11-16:17, ECF No. 40-3 (discussing Mr. Harms’s role and how he was responsible for “putting together correspondence for [his] supervisor, ” Mr. Batres).

Mr. Luper signed a formal “Merit Promotion Certificate” for Mr. Willis on June 4, 2009. Def.’s Statement ¶ 59; Pl.’s Statement ¶ 59. On June 10, 2009, Ms. Thompson received notice that she was not selected to be Deputy Regional Manager. Def.’s Statement ¶ 61; Pl.’s Statement ¶ 61. Mr. Willis began working as Deputy Regional Manager in ...


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