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Vasser v. Shinseki

United States District Court, District of Columbia

November 22, 2017

VIVIAN VASSER, Plaintiff,
v.
DAVID SHULKIN, Secretary, United States Department of Veterans Affairs Defendant.

          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.

         I. INTRODUCTION

         This 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.

         II. BACKGROUND[1]

         Ms. 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 ¶ 8.

         Ms. 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, 162-63.

         A. Deputy Regional Manager Position

         Beginning in 2008, RCS began seeking a new Deputy Regional Manager for Region 3A, headquartered in Bay Pines, Florida.[2] 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.

         A few 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.

         On 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 ¶ 121.

         B. Regional Manager Position

         In 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.

         On 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 ¶ 65.

         Ultimately, 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.

         By 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.

         Though 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.

         In the 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.

         RCS 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 105:15-106:2.

         Although 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.[3]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 ...


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