Jody Schultz v. Goldbelt Glacier Health ( 2017 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1419
_____________
JODY SCHULTZ,
Appellant
v.
GOLDBELT GLACIER HEALTH;
DEPARTMENT OF UNITED STATES AIR FORCE,
Air Force Personnel Center, National Guard Bureau
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(W.D. Pa. No. 2-15-cv-00848)
District Judge: Hon. Maureen P. Kelly, Chief Magistrate Judge
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 26, 2017
______________
Before: GREENAWAY, JR., COWEN, Circuit Judges, and PADOVA, District Judge.*
(Opinion Filed: November 1, 2017)
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OPINION**
______________
*
The Honorable John R. Padova, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
GREENAWAY, JR., Circuit Judge.
Appellant Jody Schultz alleges that Appellee, the Department of the United States
Air Force (“Air Force”), refused to hire her on account of her age, in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Schultz appeals
from the District Court’s Order granting the Air Force’s motion for summary judgment.
For the reasons set forth below, we will affirm.
I. BACKGROUND
Schultz is a 63-year-old licensed professional counselor. From 2011 to 2013, she
was employed by Optimization Consulting, a private contractor that provided counseling
and mental health services for the Air National Guard, 171st Air Refueling Wing (“171st
Air Refueling Wing,” or “171st”) in Coraopolis, Pennsylvania. During this time, Schultz
was the Director of Psychological Health, a position that required her to provide
counseling services to Airmen at the 171st Air Refueling Wing and act as a consultant to
command leadership. In March 2013, Goldbelt Glacier Health Services (“Goldbelt”)
took over Optimization Consulting’s contract at the 171st. Schultz, however, remained
the Director of Psychological Health, but now as an employee of Goldbelt.
Sometime in 2014, Schultz learned that the Air Force was considering terminating
the Goldbelt contract and providing counseling services itself. Schultz subsequently
began to seek other employment and submitted online applications for several jobs listed
on the USAJOBS website, including a Social Worker position with the Air Force. That
Social Worker job announcement indicated that there were vacancies throughout the
2
country, including the Greater Pittsburgh Airport. The announcement also had an “open
period” from April 1, 2014 to September 30, 2014, and it advised applicants that “[t]he
length of time [their] application[s] [would] remain active [would] vary based on the
closing date of this Public Notice.” App. 254. The announcement further explained that
the requirements for the position included a “master’s degree in social work [from] a
school accredited by the Council on Social Work Education,” as well as a “Clinical
Social Work license to practice independently from a U.S. jurisdiction.” App. 248–49.
Schultz possessed neither the required master’s degree nor the required Clinical
Social Work license, but she nonetheless submitted an application for the Social Worker
position on September 28, 2014. The Air Force, however, did not hire any social workers
from this job announcement. All applications submitted under the announcement were
terminated and not carried over to subsequent job listings.
After the open period for the first Social Worker announcement ended, the Air
Force posted a second USAJOBS announcement for a Social Worker position, this one
with an open period of October 1, 2014 to March 31, 2015. Again, the posting explained
that applications would remain active “based on the closing date of this Public Notice.”
App. 285. And again, the announcement indicated that the requirements for the position
included a master’s degree in social work from a school accredited by the Council on
Social Work Education and a Clinical Social Work license to practice independently.
Like the first posting, the second announcement also listed vacancies at locations
throughout the country, including both Coraopolis and the Greater Pittsburgh Airport.
3
Schultz did not submit an application for this second USAJOBS announcement.
She testified that she thought the application for the previous social worker
announcement would be considered for this vacancy as well. Instead of completing an
application, Schultz sent a letter, dated December 23, 2014, to Colonel Darrick
Cunningham, who she believed was the selecting official for the social worker position.1
In the letter, Schultz wrote that she “wish[ed] to retain [her] position as Wing Director of
Psychological Health” for the 171st Air Refueling Wing. App. 417.
On January 7, 2015, Schultz received a letter from Goldbelt notifying her that
Goldbelt’s contract with the Air Force would be ending on January 31, 2015 and that her
employment would be terminated at that time. Schultz subsequently sent an email on
January 29 to all members of the 171st Air Refueling Wing, notifying them of her
departure. In that email, Schultz wrote, “I’m not leaving because I want to and I’m not
being fired. The position is changing and I don’t have the correct credentials to change
with it.” App. 204. Schultz later explained that she was referring to the fact that she
could not keep her position because she was not a licensed social worker.
One week later, on February 5, 2015, Schultz, through her attorney, faxed a letter
to the National Guard requesting Equal Employment Opportunity (“EEO”) counseling
“leading to a formal complaint for age discrimination – failure to be hired by Air
National Guard/US Air Force as of Feb 1, 2015.” App. 305. Then on February 9,
1
According to an Air Force human resource specialist, the selecting official for
the position was actually Colonel Gregg A. Perez.
4
Schultz wrote an email to Colonel Cunningham and other military officials (copying her
attorney), in which she wrote, “I am interested in a position with the Air Force/Air Force
National Guard in my capacity as [a licensed professional counselor] effective
immediately.” App. 352.
On February 19, Schultz submitted a “Charge of Discrimination” alleging that she
applied for a position for which she was qualified, but that she had not been hired
because of her age—which at the time was 60. Schultz’s request for EEO counseling was
routed to Kenneth Vybiral, the Equal Employment Manager and Equal Opportunity
Advisor for the Pennsylvania National Guard. On March 13, 2015, Vybiral sent an email
to Schultz’s attorney attaching forms to be completed prior to scheduling EEO
counseling. Schultz’s attorney returned the completed forms to Vybiral on March 19.
According to Vybiral, he then attempted to schedule Schultz’s EEO counseling session,
but Schultz’s attorney did not allow anyone to speak with Schultz and requested that all
documentation in the case be addressed to him. Schultz’s attorney later submitted an
affidavit stating that his “standard procedure is to ask that the interview be done by
written interrogatories which should be routed through [his] office.” App. 435. Schultz’s
attorney added that “Mr. Vybiral did not indicate that this procedure was unacceptable.”
App. 436. Interrogatories were never sent, though, and Schultz’s case was never
assigned a case number. According to Vybiral, case numbers generally are not assigned
until after initial counseling, and because Schultz did not participate in counseling, her
case was not further processed.
5
Eventually, the Air Force hired Matthew Dalrymple for the social worker position
at the 171st Air Refueling Wing. Dalrymple, who is approximately twenty years younger
than Schultz, was selected after he submitted an application for the second USAJOBS
announcement. He holds a master’s degree in social work, is a licensed clinical social
worker, and was previously a social worker with the Department of Veterans Affairs.
Dalrymple also invoked his status as a U.S. Army veteran during the application process.
He started working at the 171st on April 5, 2015.
On June 29, 2015, Schultz filed suit against Goldbelt for wrongful termination and
the Air Force for failure to hire, both in violation of the ADEA. Goldbelt was dismissed
from the case after a successful alternative dispute resolution session resolved the
wrongful termination claim. But the claim against the Air Force remained, and following
the close of discovery, the Air Force filed a motion for summary judgment, which the
District Court granted.2 The court concluded that Schultz had failed to exhaust
administrative remedies and was unable to establish a prima facie case of discrimination
because she never submitted an application for the job announcement from which
Dalrymple was actually selected and because she did not have the requisite master’s
degree in social work or clinical social work license. The court accordingly entered
judgment in favor of the Air Force. Schultz then filed this timely appeal.
2
By the consent of the parties, Chief Magistrate Judge Maureen Kelly exercised
the authority of the District Court. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73.
6
II. JURISDICTION & STANDARD OF REVIEW
The District Court had jurisdiction over this case under 28 U.S.C. § 1331. This
Court has jurisdiction pursuant to 28 U.S.C. § 1291.
We exercise plenary review over a district court’s grant of summary judgment.
Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 665 (3d Cir. 2016). Thus, we will
affirm “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).3 We view
“the facts in the light most favorable to the nonmoving party and draw all inferences in
that party’s favor.” Steele v. Cicchi, 855 F.3d 494, 500 (3d Cir. 2017) (quoting Burns v.
Pa. Dep’t of Corrections, 642 F.3d 163, 170 (3d Cir. 2011)). To avoid summary
judgment, however, the non-movant cannot “rely merely upon bare assertions” or
“conclusory allegations.” Fireman’s Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir.
1982).
III. ANALYSIS
Schultz challenges both of the District Court’s grounds for granting summary
judgment. She first argues that the Court erred in ruling that she had failed to exhaust
administrative remedies, because, according to her, she filed an EEO charge, but the Air
3
The District Court mistakenly cited an out-of-date version of Rule 56, under
which summary judgment was appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” App. 8; Fed. R. Civ.
P. 56(c)(2) (amended 2010). This error does not affect the result here, however.
7
Force refused to act on the charge. And second, Schultz contends that she has in fact
made out a prima facie case of age discrimination because the evidence shows she
applied and was qualified for the Social Worker position. Neither of these arguments are
availing.
A. Exhaustion of Administrative Remedies
An ADEA plaintiff has “two alternative routes for pursuing a claim of age
discrimination.” Stevens v. Dep’t of Treasury, 500 U.S. 1, 5 (1991). She “may invoke
the [Equal Employment Opportunity Commission’s (EEOC)] administrative process and
then file a civil action in federal district court” if she is not satisfied with the outcome.
Id. Or, she “can decide to present the merits of [her] claim to a federal court in the first
instance,” after giving the EEOC thirty days’ notice of her intent to do so. Id. at 6. Once
the plaintiff has chosen to initiate the administrative process, however, she must see it
through before filing a lawsuit. See Purtill v. Harris, 658 F.2d 134, 138 (3d Cir. 1981).4
4
The soundness of this holding from Purtill is in doubt in light of a 1992 revision
to the ADEA’s implementing regulations. But even if those regulations have superseded
Purtill, Schultz has still failed to comply with the ADEA’s exhaustion requirement,
because her suit was untimely under the regulations. Specifically, 29 C.F.R.
§ 1614.407(b) now authorizes ADEA complainants to file suit in federal court 180 days
after the filing of their complaint with the EEOC, if the agency has yet to take a final
action on the complaint and an administrative appeal has not been filed. Schultz argues
that she complied with that regulation, which was provided to her on a rights advisement
form that she signed and returned to Vybiral. The problem with Schultz’s contention,
though, is that she has severely miscounted the number of days between initiating her
administrative complaint and filing suit. She first contacted the Air Force about filing an
age discrimination complaint on February 5, 2015, and she filed this lawsuit on June 29,
2015. Accordingly, Schultz waited, at most, 145 days before filing suit. And therefore,
8
Here, the parties agree that Schultz invoked the administrative process by filing an
informal complaint, completing the required forms, and filing a charge of discrimination.
Accordingly, she was required to wait for an agency decision before filing suit. See
Purtill, 658 F.2d at 134. But Schultz failed to wait for the EEOC to act on her charge
and, after less than five months, proceeded instead to file this lawsuit. Under Purtill,
Schultz’s abandonment of the administrative process is fatal. She has failed to meet the
ADEA’s exhaustion requirement.
Schultz argues that summary judgment on the exhaustion issue is inappropriate
because “there is at least a genuine issue of material fact as to whether the EEO[C] failed
to perform its statutory duty by conducting the initial counseling via written
interrogatories,” as Schultz’s counsel had requested. Appellant’s Br. at 24. We disagree.
Nothing in the governing regulations contemplates the use of written interrogatories in
lieu of in-person counseling. Indeed, those regulations expressly envision an “initial
counseling session.” 29 C.F.R. § 1614.105(b)(1). Further, the EEOC Management
Directives, with which EEO Counselors must comply, see id. § 1614.105(c), instruct that
the “EEO process begins when a person who believes s/he has been aggrieved meets with
an EEO Counselor.” U.S. Equal Emp. Opportunity Comm’n, Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 614 (EEO-MD-11), at 2-1 (2015)
(emphasis added). Thus, there is no basis to conclude that the EEOC had a “statutory
even if we were to hold that Purtill is no longer good law, we would still conclude that
Schultz has failed to comply with 29 C.F.R. § 1614.407(b).
9
duty” to conduct the initial counseling using interrogatories. If anything, an EEO
counselor may have been required to insist on meeting with Schultz in person.
Nor is Schultz entitled to equitable estoppel on the issue of exhaustion. Such
relief should be granted only “in extraordinary situations.” Robinson v. Dalton, 107 F.3d
1018, 1023 (3d Cir. 1997). And “[r]unning throughout the equitable estoppel cases is the
obligation of the plaintiff to exercise due diligence to preserve his or her claim.” Id.
Here, even if we accept Schultz’s contention that Vybiral suggested interrogatories would
be acceptable, Schultz has still failed to present evidence showing that she meaningfully
pursued the administrative process any further. She does not allege, for instance, that her
attorney even once followed up with Vybiral after the interrogatories did not arrive
promptly. Nor does she claim that she or her attorney contacted anyone else about her
age discrimination charge. Thus, viewing the evidence in the light most favorable to
Schultz, we find that over the course of several months, she did nothing to pursue her
administrative claim. Under such circumstances, we have no hesitation concluding that
Schultz has failed to exhaust her administrative remedies. We therefore affirm the
District Court’s granting of summary judgment in favor of the Air Force.
B. Schultz’s Prima Facie Age Discrimination Case
Even if Schultz had complied with the ADEA’s exhaustion requirement, we would
nevertheless affirm the District Court because Schultz has failed to make out a prima
facie case of age discrimination. To establish such a case a plaintiff must show 1) that
she is forty years of age or older; 2) that she applied for and was qualified for the job; 3)
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that she was rejected despite her qualifications; and 4) that the Air Force ultimately hired
someone for the position who was sufficiently younger to permit an inference of age
discrimination. Fowle v. C & C Cola, a Div. of ITT-Cont’l Baking Co., 868 F.2d 59, 61
(3d Cir. 1989); 29 U.S.C. § 631. Only once the plaintiff makes out a prima facie case
does the burden shift to the defendant “‘to articulate some legitimate, nondiscriminatory
reason’ for the failure to hire.” Fowle, 868 F.2d at 61 (quoting McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). If the defendant provides such a reason, then
the burden shifts back to the plaintiff to prove that the proffered reason was in fact
pretext. Fowle, 868 F.2d at 62.
In this case, Schultz is unable to make out a prima facie case because she failed to
apply for the job at issue. We have previously held in the Title VII context that failure to
formally apply for a job opening does not bar a plaintiff from establishing a prima facie
case of discriminatory hiring, “as long as the plaintiff made every reasonable attempt to
convey his interest in the job to the employer,” EEOC v. Metal Service Co., 892 F.2d
341, 348 (3d Cir. 1990). Alternatively, a plaintiff need not formally apply if he was
deterred from applying due to the employer’s discriminatory practices, or “had a real and
genuine interest” in the job “but reasonably believed that a formal application would be
futile.” Newark Branch, NAACP v. Town of Harrison, 907 F.2d 1408, 1415 (3d Cir.
1990).
Schultz concedes the fact that she did not submit a formal application for the
second USAJOBS announcement—the announcement from which Matthew Dalrymple
11
was hired as the Social Worker for the 171st Air Refueling Wing. Instead, she argues
that she “made every reasonable effort to convey her interest in the position” to the Air
Force. Appellant’s Br. at 14. In support of this contention, she stresses that she
submitted a formal application for the first Social Worker job announcement during its
open period in September 2014,5 submitted various letters of recommendation, sent a
letter to Colonel Cunningham in December saying she wished to retain her position, and
then sent an email in February 2015 to Colonel Cunningham and other military officials
saying she was interested in a positon with the Air Force in her capacity as a licensed
professional counselor.
These actions are not sufficient to show that Schultz made a reasonable effort to
convey her interest in the Social Worker position. None of the actions adequately explain
why Schultz failed to submit a second USAJOBS application. Indeed, that Schultz
submitted an application for the first USAJOBS announcement shows she knew or should
have known how the application process worked. The first announcement made clear
that applications would only remain active until the closing date, September 30, 2014,
and nothing in either the first or second announcement suggested that applications would
5
It bears emphasis that Schultz does not bring a failure to hire claim regarding the
first USAJOBS announcement, for which she did submit a formal application. Schultz
filed a Motion to Amend Complaint in the District Court, seeking permission to add a
failure to hire claim regarding that first USAJOBS announcement, but the District Court
denied the motion. Schultz does not challenge that order in this appeal. Thus, for our
purposes, Schultz’s application to the first announcement is relevant only to the extent
that it shows she made a reasonable effort to convey her interest in the second
announcement—the announcement from which Dalrymple was actually hired.
12
be transferred to other announcements. On the contrary, both announcements expressly
stated that it was “the applicant’s responsibility to verify that the information entered,
uploaded, or faxed . . . is received, accurate and submitted by the closing date.” App.
253, 284. Thus, Schultz knew or should have known to submit an application for the
second USAJOBS announcement, and her application for the first announcement does
not constitute a reasonable attempt to convey her interest in the second.
Nor do Schultz’s December 2014 letter and February 2015 email to Colonel
Cunningham convey such an interest, because neither actually referenced the open Social
Worker position. Rather, Schultz said in the letter that she wanted to retain her position
as Director of Psychological Health. And she said in the email that she was interested in
a position with the Air Force in her capacity as a licensed professional counselor. As
other circuits have held, “[a] general interest in being rehired without submitting an
application is not enough to establish a prima facie case of age discrimination when the
defendant-employer has publicized an open position.” Smith v. J. Smith Lanier & Co.,
352 F.3d 1342, 1345 (11th Cir. 2003); see also Williams v. Giant Food Co., 370 F.3d
423, 430 (4th Cir. 2004); Wanger v. G.A. Gray Co., 872 F.2d 142, 146 (6th Cir. 1989);
Box v. A & P Tea Co., 772 F.2d 1372, 1376–77 (7th Cir. 1985). Viewing the evidence in
the light most favorable to Schultz, at best, she did no more than communicate an interest
in continuing to work for the 171st Air Refueling Wing in some capacity. The District
Court was correct to conclude that Schultz did not adequately express a specific interest
in the Social Worker position at the 171st.
13
Moreover, even if Schultz had applied for the Social Worker job, she still would
not be able to establish a prima facie case of age discrimination because she lacked the
requisite qualifications for the position. The second USAJOBS announcement stated that
a “master’s degree in social work [from] a school accredited by the Council on Social
Work education” was a “Basic Requirement[]” for the job. App. 280. Schultz concedes
that she does not have such a degree. The announcement also said that applicants must
have “a Clinical Social Work license to practice independently from a U.S. jurisdiction”
and must submit a copy of the license with their application. App. 281. Schultz
concedes that she does not have such a license.
She instead contends that she was nonetheless qualified for the Social Worker
position because she had performed the duties of the position for four years and was
commended for her performance during that time period. The Air Force responds that it
made the determination to include the degree and license requirements because the newly
hired in-house social workers would be working independently and without the ability to
consult other personnel within their unit. Schultz does not rebut that explanation, and
without any evidence that the Air Force’s proffered rationale is pretextual, we think it
inappropriate to second-guess its determination of what the appropriate qualifications for
the position are. See Gorence v. Eagle Food Centers, Inc., 242 F.3d 759, 765 (7th Cir.
2001) (“What the qualifications for a position are, even if those qualifications change, is a
business decision, one courts should not interfere with.”).
Schultz also claims that the Air Force hired a number of people for Social Worker
14
positions elsewhere in the country who, like her, are licensed professional counselors
rather than licensed social workers. She argues that those hires show that the degree and
license were not actually essential requirements. The Air Force, however, provided
evidence to the trial court that the individuals Schultz identified were hired not as Social
Workers, but as Psychological Health Program Specialists, a lower-paying position with
different job requirements. Schultz has no response to the Air Force’s evidence and is
thus unable to establish a genuine dispute as to a material fact regarding whether the
requirements for the Social Worker position were any different than advertised in the
USAJOBS announcement. We agree with the District Court’s conclusion that Schultz
has failed to make out a prima facie case of age discrimination.
IV. CONCLUSION
For the reasons set forth above, Schultz has not complied with the ADEA’s
exhaustion requirement and has failed to establish a prima facie case of age
discrimination. We will therefore affirm the District Court’s granting of summary
judgment in favor of the Air Force.
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