United States District Court, District of Columbia
MEMORANDUM OPINION DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT; GRANTING DEFENDANT'S
MOTIONS FOR LEAVE TO FILE UNDER SEAL
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
case involves an employment discrimination action brought by
Plaintiff, Vivian Vasser, against David Shulkin in his
capacity as Secretary of the United States Department of
Veterans Affairs (“VA”). Ms. Vassers claims that
the VA discriminated and retaliated against her when it
failed to promote her to a position of either the Deputy
Regional Manager or Regional Manager for the VA's
Readjustment Counseling Service in Region 3A, headquartered
in Bay Pines, Florida. This matter now comes before the Court
on the Secretary's Motion for Summary Judgment
(“Def.'s Mot.”), ECF No. 66. For the reasons
stated below, that motion is denied.
Vasser, an African-American woman, is a licensed social
worker who has worked for the VA in its Readjustment
Counseling Service (“RCS”) since the early 1990s.
See Def.'s Resp. Pl.'s Counter-Statement
Material Facts in Dispute (“Def.'s Resp. Pl.'s
Counter-SMF”) ¶ 11, ECF No. 76-1; Pl.'s
Counter-Statement Material Facts in Dispute (“Pl.'s
Counter-SMF) ¶¶ 1, 11, ECF No. 72-18; Pl.'s
Opp'n Def.'s Mot. Summ. J. (“Pl.'s
Opp'n”), Ex. 10, ECF No. 72-2. RCS is a division of
the Veterans Health Administration within the VA and is
responsible for providing counseling and psychosocial
services to returning combat veterans and their family
members primarily through individual “Vet
Centers.” See 38 U.S.C. §§ 1712A,
7309(a). RCS is divided into seven regions, each of which is
overseen by a Regional Manager with assistance from a Deputy
Regional Manager and Associate Regional Managers. Pl.'s
Counter-SMF ¶ 5; Def.'s Resp. Pl.'s Counter-SMF
¶ 5. These Regional Managers report to RCS's Chief
Officer, who retains responsibility for all Regional Offices
and Vet Centers nationwide. Pl.'s Counter-SMF ¶ 7;
Def.'s SMF ¶ 7. At all times relevant to this suit,
RCS's Chief Officer was Dr. Alfonso Batres. Pl.'s
Counter-SMF ¶ 8; Def.'s Resp. Pl.'s Counter-SMF
Vasser first started working at RCS as a clinical social
worker in 1993 and eventually rose to the rank of Supervisory
Social Worker/Team Leader (“Team Leader”), a
position that she has held since January 2000. See
Pl.'s Opp'n, Ex. 10. As a Team Leader, Ms. Vasser was
responsible for hiring, managing budgets, and supervising the
care of veterans at the Eastside Vet Center in Maple Heights,
Ohio. See Def.'s Resp. Pl.'s Counter-SMF
¶¶ 14-15; Pl.'s Counter-SMF ¶¶ 14-15.
In addition to her experience within RCS, Ms. Vasser has also
held various positions involving behavioral health and social
work as an officer in the U.S. Army Reserves. See
Pl.'s Opp'n, Ex. 10. Between 2007 and 2011, Ms.
Vasser vigorously pursued promotion to several high-level
positions within RCS, including positions as RCS Deputy
Regional Manager and RCS Regional Manager. See Pl.'s
Counter-SMF ¶¶ 52, 60, 64, 123, 162-63; Def.'s
Resp. Pl.'s Counter-SMF ¶¶ 52, 60, 64, 123,
Deputy Regional Manager Position
in 2008, RCS began seeking a new Deputy Regional Manager for
Region 3A, headquartered in Bay Pines, Florida. See
Pl.'s Opp'n, Ex. 4, ECF No. 72-1. The position had
been left vacant after John Walker, the former Deputy
Regional Manager, was promoted to Regional Manager in 2007.
Def.'s Statement Material Facts (“Def.'s
SMF”) ¶ 11, ECF No. 66-1; Pl.'s Resp.
Def.'s Statement Material Facts (“Pl.'s Resp.
Def.'s SMF”) ¶ 11, ECF No. 72-18. On August
29, 2008, the VA solicited applications for the Deputy
Regional Manager position under Announcement Number
MPA-08-351, see Pl.'s Opp'n, Ex. 4, and Ms.
Vasser submitted an application, Pl.'s Counter-SMF ¶
64. Although the Secretary denies her account, Ms. Vasser
claims that not only did she apply for the position, but that
Mr. Walker interviewed her and recommended that Dr. Batres
select her for the job. Compare Pl.'s Counter-SMF
¶¶ 64-74, with Def.'s Resp. Pl.'s
Counter-SMF ¶¶ 64-74. Nevertheless, the parties
agree that on January 2009, Mr. Walker canceled the vacancy
announcement without any applicant receiving a formal offer.
See Decl. John Walker (“Walker Decl.”)
at Ex. 1, ECF No. 66-3; Pl.'s Counter-SMF ¶ 82;
Def.'s Resp. Pl.'s Counter-SMF ¶ 82.
months later, in April 2009, the same position was
re-advertised under Announcement Number 2009-196-AA.
See Def.'s Mot., Ex. 1, ECF No. 66-6; Pl.'s
Counter-SMF ¶ 86; Def.'s Resp. Pl.'s Counter-SMF
¶ 86. Ms. Vasser once again applied for the position and
was ultimately found to be one of four eligible candidates.
Def.'s SMF ¶ 17; Pl.'s Resp. Def.'s SMF
¶ 17. This time, even though no interviews were
conducted, Mr. Walker recommended, and Dr. Batres approved,
the selection of a white man named Wayne Plummer who had, at
that time, been serving as a Team Leader in Region 3A for a
little under two years. See Walker Decl.
¶¶ 10, 12; Def.'s Mot., Ex. 2, ECF No. 66-6.
October 30, 2009, Ms. Vasser became aware of her
non-selection and, shortly thereafter, filed an informal
complaint of discrimination with the Office of Resolution
Management. Pl.'s Counter-SMF ¶ 121; Def.'s
Resp. Pl.'s Counter-SMF ¶ 121. She later filed a
formal complaint on February 17, 2010. Pl.'s Counter-SMF
¶ 121; Def.'s Resp. Pl.'s Counter-SMF ¶
Regional Manager Position
August 2010, Mr. Walker, the then-Regional Manager for Region
3A, retired from the VA. Walker Decl. ¶ 4. That fall,
RCS reached out to Rachelle Seybold, a Senior Human Resource
Specialist, to fill that vacancy. Def.'s SMF ¶ 38;
Pl.'s Resp. Def.'s SMF ¶ 38. Ms. Seybold
received certain information from RCS in Washington, D.C.,
such as the position description, area of consideration, and
the knowledge, skills, and abilities requirements that were
to be used in advertising the position vacancy. Def.'s
SMF ¶ 39; Pl.'s Resp. Def.'s SMF ¶ 39.
Using this information, Ms. Seybold developed Vacancy
Announcement Number 417114 and posted the announcement to an
official federal employment website. See Def.'s
SMF ¶¶ 40-41; Pl.'s Resp. Def.'s SMF
¶¶ 40-41. The position, as listed in the
Announcement, was for a GS-14 Regional Manager and was open
to all current, permanent VA employees nationwide.
See Def.'s SMF ¶ 41; Pl.'s Resp.
Def.'s SMF ¶ 41; Def.'s Mot., Ex. 5. The VA
accepted applications for that position from December 2010
through January 2011. See Def.'s Mot., Ex. 5,
ECF No. 66-6. In total, eleven candidates applied, five of
whom the VA deemed qualified and placed on a certificate of
eligible candidates, including Ms. Vasser. Def.'s SMF
¶¶ 46-48; Pl.'s Resp. Def.'s SMF
¶¶ 46-48. Nevertheless, Dr. Batres did not make a
selection based on that certificate. Def.'s SMF ¶
53; Pl.'s Resp. Def.'s SMF ¶ 53.
March 30, 2011, RCS advertised the Regional Manager position
a second time, this time under Vacancy Announcement Number
454888. Pl.'s Counter-SMF ¶ 162; Def.'s Resp.
Pl.'s Counter-SMF ¶ 162. This announcement, like the
first, was advertised as a GS-14 position, but unlike the
first announcement, this one was open to all U.S. Citizens,
not just VA employees. See Def.'s SMF ¶ 59;
Pl.'s Resp. Def.'s SMF ¶ 59; Def.'s Mot.,
Ex. 8, ECF No. 66-7. The VA accepted applications from March
30, 2011 through April 6, 2011 and, in all, 113 people
applied. See Def.'s SMF ¶¶ 60-61;
Pl.'s Resp. Def.'s SMF ¶¶ 60-61; Def.'s
Mot., Ex. 8. Of those 113 applicants, five were placed on the
certificate of eligibles, including Ms. Vasser. See
Def.'s SMF ¶¶ 60-61; Pl.'s Resp. Def.'s
SMF ¶¶ 60-61. Again, however, Dr. Batres did not
make a selection based on the certificate. See
Def.'s SMF ¶ 65; Pl.'s Resp. Def.'s SMF
Dr. Batres selected Sarita Figueroa after yet another vacancy
announcement was issued. At that time, Ms. Figueroa was a
GS-15 Associate Director of the VA Caribbean Healthcare
System. See Def.'s SMF ¶ 76 Pl.'s Resp.
Def.'s SMF ¶ 76. Ms. Figueroa and Dr. Batres,
however, were not unknown to one other. Indeed, the VA Office
of Inspector General (“OIG”) later described Dr.
Batres and Ms. Figueroa as “being close, personal
friends, and [as] having a deep-felt respect and admiration
for one another.” Def.'s Mot., Ex. 22 at ¶ 54,
ECF No. 66-10; see also Pl.'s Opp'n, Ex. 55,
ECF No. 72-10.
April 2011, Ms. Figueroa had expressed to Dr. Batres that she
was interested in returning to Florida. See Decl.
Dr. Alfonso Batres (“Batres Decl.”) ¶ 33,
ECF No. 66-3; Pl.'s Counter-SMF ¶ 165; Def.'s
Resp. Pl.'s Counter-SMF ¶ 165. On April 5, one day
before the close of the second vacancy announcement, Dr.
Batres asked Ms. Figueroa to call him. See Pl.'s
Opp'n, Ex. 55. Although the substance of that
conversation is unclear, on April 18, Ms. Figueroa emailed
Dr. Batres to tell him she had contacted HR about applying
for the Bay Pines Regional Manager position, but had missed
the deadline to submit an application. Def.'s Resp.
Pl.'s Counter-SMF ¶ 170; Pl.'s Counter-SMF
¶ 170; see also Pl.'s Opp'n, Ex. 29,
ECF No. 72-5.
Dr. Batres was the formal selecting official for the
position, much of the recruitment effort was performed by
Greg Harms, Dr. Batres's administrative officer.
See Def.'s Mot., Ex. 22 at ¶ 2; Pl.'s
Counter-SMF ¶ 172; Def.'s Resp. Pl.'s
Counter-SMF ¶ 172. By the summer of 2011, Mr. Harms was
seeking advice from Denis McNamara, an RCS Human Resources
Specialist/Consultant stationed in Milwaukee, Wisconsin,
about whether Dr. Batres could laterally transfer Ms.
Figueroa noncompetitively into the Bay Pines Regional Manager
position at a grade of GS-14. Def.'s Resp. Pl.'s
Counter SMF ¶ 177; Pl.'s Counter-SMF ¶ 177;
Dep. Denis McNamara (“McNamara Dep.”) at 76:3-16,
ECF No. 72-13. Although Mr. McNamara was unsure, Wayne Davis,
a Human Resources Officer, also stationed in Wisconsin,
believed that such a transfer would be possible as long as
Ms. Figueroa was qualified. Pl.'s Counter-SMF ¶ 179;
Def.'s Resp. Pl.'s Counter-SMF ¶ 179. In July,
Mr. Davis forwarded Ms. Figueroa's resume, along with the
formal position description for Regional Manager to yet
another HR Specialist named Theresa Lasota and asked her
whether she considered Ms. Figueroa qualified for the
position. Def.'s Resp. Pl.'s Counter SMF ¶ 188;
Pl.'s Counter-SMF ¶ 188; Pl.'s Opp'n, Ex.
28, ECF No. 72-5. The next day Ms. Lasota wrote to Mr. Davis
stating that she would not qualify Ms. Figueroa for the
position “at any grade level” because, not only
did she “not possess the education requirements, she
also [did] not have the experience required by the [position
description].” Def.'s Resp. Pl.'s Counter SMF
¶¶ 189, 192; Pl.'s Counter-SMF ¶¶
189, 192; Pl.'s Opp'n, Ex. 28. Mr. McNamara forwarded
Ms. Lasota's comments to Mr. Harms and suggested that
“[p]erhaps there is more work to do on this?”
Pl.'s Opp'n, Ex. 28. Later, Mr. Davis expressed his
belief that they still might be able to reassign Ms.
Figueroa, but that they might need to adjust the position
description. See McNamara Dep. at 91:20-92:5;
Pl.'s Opp'n, Ex. 32, ECF No. 72-6.
meantime, however, the two previous certificates of eligible
candidates were still outstanding. On July 22, 2011, Mr.
McNamara emailed Mr. Harms, proposing that no one be selected
under the outstanding certificates and that the position be
reclassified as a GS-15 position and “either open the
job under Merit Systems or seek a lateral placement of a top
executive to that position.” See Pl.'s
Opp'n, Ex. 33, ECF No. 72-6. The ostensible purpose for
the reclassification was to attract applicants with greater
leadership experience than they had seen under the last two
announcements. See Pl.'s Opp'n, Ex. 33. In
his email, Mr. McNamara explained that Bay Pines was facing
“unique circumstances” and that it
“present[ed] the most difficult situation with regards
to leadership.” See Pl.'s Opp'n, Ex.
33. He did not, however, elaborate on what either the
circumstances or difficulties were. See Pl.'s
Opp'n, Ex. 33. Nevertheless, he suggested that this
proposed course of action be shared with Dr. Batres and that
they urge him to accept it. See Pl.'s Opp'n,
Ex. 33. About two hours later, Mr. Harms emailed Ms. Seybold
to inform her that Dr. Batres was returning the certificates
without making a selection. See Def.'s Resp.
Pl.'s Counter SMF ¶ 205; Pl.'s Counter-SMF
¶ 205; Pl.'s Opp'n, Ex. 34, ECF No. 72-6.
then set out to rewrite the Bay Pines Regional Manager
position description to reflect a GS-15 position. Def.'s
Resp. Pl.'s Counter-SMF ¶ 207; Pl.'s Counter-SMF
¶ 207. After the new position description was complete,
Mr. Harms sent Ms. Figueroa a copy and Mr. Harms and Mr.
McNamara then proceeded to help Ms. Figueroa tailor her
resume for that newly described position. See
Def.'s SMF ¶ 80; Pl.'s Counter-SMF ¶¶
213-14; Def.'s Resp. Pl.'s Counter SMF ¶ 213-14;
Pl.'s Opp'n, Exs. 37-38; McNamara Dep. at
the VA had previously been discussing the possibility of
laterally transferring Ms. Figueroa into the Regional Manager
position, the VA eventually decided to issue a new
competitive announcement based upon a recommendation from Ms.
Seybold. See Dep. Gregory Harms (“Harms
Dep.”) at 123:11-22, 126:21-127:14, ECF No. 72-13.
Following this decision, Ms. Seybold began preparing a new
vacancy announcement for public dissemination. Def.'s
Resp. Pl.'s Counter SMF ¶ 220; Pl.'s Counter-SMF
¶ 220. On September 2, 2011, she asked Mr. Harms whether
the area of consideration for the vacancy should be open to
all RCS employees or whether external applicants could also
be considered. See Pl.'s Opp'n, Ex. 41, ECF
No. 72-8. But rather than expand the area of consideration,
Mr. Harms indicated that it should be restricted to only VISN
8 employees-the same area in which Ms. Figueroa was
employed.See Pl.'s Opp'n, Exs. 41,
44, ECF No. 72-8. Doing so eliminated 99% of all VA staff
that could be considered for the position. Def.'s SMF
¶ 90; Pl.'s Resp. Def.'s SMF ¶ 90. In
addition, now that the position was upgraded to GS-15, it now
required applicants ...