Chavers v. Mansfield ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
DEE DEE CHAVERS, )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1911 (ESH)
)
ERIC K. SHINSEKI, )
Secretary, )
U.S. Department of Veterans Affairs, )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
Plaintiff Dee Dee Chavers is an employee of the United States Department of Veterans
Affairs (“VA” or “the agency”). She claims that her employer discriminated against her on the
basis of her disability, discriminated against her by subjecting her to a hostile work environment
based on her gender, and retaliated against her for complaining about that discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
and the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701 et seq. Defendant
has moved for judgment on the pleadings or, in the alternative, summary judgment on all of
plaintiff’s claims. Having considered defendant’s motion, the record herein, and for the reasons
set forth below, the Court will grant the motion.
BACKGROUND
At all times relevant to this case, plaintiff was employed as a Program Specialist in
Nursing Education at the Veterans Affairs Medical Center (“VAMC”) in Washington, D.C.
(Pl.’s Opp’n (“Opp’n”) to Def.’s Mot. to Dismiss and Mot. for J. on the Pleadings or in the
Alternative, Mot. for Summ. J. (“Mot.”), Statement of Genuine Issues and Affirmative Statement
1
of Material Facts (“Pl.’s SMF”) at 1 ¶ 1.) During the relevant period, plaintiff was a thirty
percent or greater compensable service-connected disabled veteran. (Mem. in Supp. of Mot.
(“Mem.”) at 29; Compl. ¶ 7.) She asserts that she suffers from a variety of medical conditions,
including some that cause “chronic pain in her back and legs,” that substantially limit walking,
standing, and sitting. (Pl.’s SMF at 10 ¶¶ 31-32.)
I. THE ALLEGED HARASSMENT
In 2004, plaintiff’s work area was moved to the VAMC’s basement, putting her in the
vicinity of the Building and Trades Unit (“BTU”) of the VAMC’s Facilities Management
Service (“FMS”). (Pl.’s SMF at 1-2 ¶¶ 2, 4.) One of the carpenters working in the BTU was
Albert Rogers, whom plaintiff described as a “very friendly” and “very jolly” “350-pound
muscular guy with a loud voice” who “made it a point to know as many people as possible” and
“would cheerfully greet” people he saw by “smil[ing] and speak[ing]” to them “whether he knew
[them] or not . . . .” (Def.’s Mot. to Dismiss and Mot. for J. on the Pleadings or in the
Alternative, Mot. for Summ. J. (“Mot.”), Ex. 1 (Chavers Dep., Oct. 29, 2008) (“Chavers Dep.”1)
at 45:5-11, 55:4-8, 67:11-18.)
Plaintiff had several work-related interactions with Rogers via telephone and electronic
work order, and following her 2004 relocation to the VAMC basement, she also encountered him
briefly in the hallway on several occasions. (Pl.’s SMF at 2 ¶¶ 3-4.) On two or three of those
occasions, Rogers offered to “‘take [plaintiff] out to lunch’” (Chavers Dep. at 43:19-25 (quoting
Rogers), 48:2-5), but plaintiff declined, at which point Rogers would, in plaintiff’s words, “latch
onto the next person.” (Chavers Dep. at 43:19-25; see also Pl.’s SMF at 2 ¶ 4.) On a separate
occasion, plaintiff told her supervisor, Dr. Suzanne McNicholas, that Rogers had made
1
Defendant also submitted additional excerpts from this deposition as Exhibit 1 to his
reply. (See Def.’s Reply in Supp. of Mot. (“Reply”), Ex. 1.)
2
comments to a nurse that the nurse had found “inappropriate.” (Opp’n, Decl. of Dee Dee
Chavers (“Chavers Decl.”) ¶ 34).)
At approximately 1:00 p.m. on June 7, 2005, plaintiff was exiting the nursing education
and research classroom and locking the door behind her when she encountered Rogers in the
“brightly lit” hallway where “a lot of people” were present. (Pl.’s SMF at 2 ¶ 5; Chavers Dep. at
54:4-55:1, 61:11-13.) Rogers was standing in front her, hunched over his red steel tool cart,
blocking her exit with the cart. (Pl.’s SMF at 2 ¶ 6; Chavers Dep. at 51:7-11.) Rogers told her
that he would not move until she gave him a kiss. (Pl.’s SMF at 2 ¶ 6.) When plaintiff asked
him to move the cart, Rogers replied, “Not until you give me a kiss for the work that I’ve done.”
(Id. at 2 ¶ 7.) Plaintiff then attempted to move Rogers and the cart by pushing against them for
“probably a few seconds” with the right side of her body, straining her arm in the process.
(Chavers Dep. at 57:13-15; Pl.’s SMF at 2 ¶ 8.) Plaintiff did not call out for help. (See Chavers
Dep. at 61:18-62:4.) Raymond Doster, a medical records supervisor, came over after noticing
plaintiff and Rogers and told Rogers to leave plaintiff alone, at which point Rogers left. (Pl.’s
SMF at 2 ¶ 9; Chavers Dep. at 59:6-8.) The entire incident lasted “[p]robably over a minute.”
(Chavers Dep. at 56:14-20.)
Immediately following the incident, plaintiff returned to her office and “cried for about
an hour.” (Chavers Dep. at 59:12-15.) Feeling pain throughout the right side of her body,
plaintiff took the stairs up one floor to the occupational health unit, but because it was too
crowded, she left without checking in or being evaluated and returned to her office. (See id. at
59:15-60:21.) Feeling unable to focus, she left the office shortly before she was scheduled to get
off of work at 3:00 p.m. (Id. at 60:22-24.)
Within a day or two of the Rogers incident, Doster related what he had observed to Larry
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Osborne, the BTU supervisor. (Pl.’s SMF at 6-7 ¶ 20.) On June 9, 2005, Osborne orally
instructed Rogers not to go near plaintiff’s office. (Def.’s Statement of Material Facts as to
Which There Is No Genuine Issue (“Def.’s SMF”) ¶ 21.)2 Plaintiff did not talk about the Rogers
incident with anyone, not even friends or family, until one week later. (Chavers Dep. at 64:18-
25.) On June 13, 2005, she reported the incident to Carol Mather, a specialist in the agency’s
Equal Employment Opportunity (“EEO”) office. (See Mot., Ex. 7 (Carol Mather EEO Aff., Jan.
19, 2006) (“Mather Aff.”) ¶ 5.) The EEO office began an investigation into the Rogers incident,
and Mather learned that two other female employees reported incidents with Rogers after
plaintiff’s incident. (Id. ¶¶ 15-17; Mot., Ex. 6 (Carol Mather Dep., Aug. 2, 2006) at 8:17-19; see
also Chavers Dep. at 68:21-69:17.)
On June 14, 2005, plaintiff reported the incident to the VA Police Service and
McNicholas, her immediate supervisor. (See Chavers Dep. at 64:18-25; Pl.’s SMF at 3 ¶ 11, 7 ¶
22; Mot., Ex. 15 (McNicholas Dep., Aug. 2, 2006) (“McNicholas Dep.”) at 14:2-18.) Plaintiff
requested that Rogers be restricted to certain areas of the building, that he not be permitted to
interact with her, and that a panic button be installed in her office. (Chavers Dep. at 74:4-11.)
On June 15 or 16, McNicholas spoke with David King of the EEO office and later spoke with
Osborne, telling him that she wanted Rogers to have no further contact with plaintiff.
(McNicholas Dep. at 14:12-15:12, 19:2-3; Mather Aff. ¶ 18.) McNicholas also advised
2
Plaintiff states that she “has insufficient information to admit or deny” this fact (Pl.’s
SMF at 7 ¶ 21), which defendant supports with Osborne’s deposition testimony. (See Mot., Ex.
5 (Larry Osborne Dep., Aug. 6, 2006) at 22-23.) Local Civil Rule 7 requires that plaintiff “set[]
forth all material facts as to which it is contended there exists a genuine issue necessary to be
litigated . . . .” Local Civ. R. 7(h). Because plaintiff has failed to dispute defendant’s assertion,
the Court accepts it as true. See Potter v. District of Columbia, 558 F.3d 542, 548 (D.C. Cir.
2009) (“Under Rule 7(h) of the district court’s local rules, the moving party must submit a
statement of material facts as to which it asserts there is no genuine issue, and the district court
may accept these facts as true if the opposing party does not dispute them.” (citations omitted)).
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plaintiff’s second-level supervisor, Geraldine Feaster, about the Rogers incident. (See
McNicholas Dep. at 23:21-24:6.)
On June 20, 2005, McNicholas and Osborne met with Rogers to discuss the incident, and
McNicholas told Rogers that he was to avoid contact with plaintiff; the next day, Rogers went on
unpaid leave. (McNicholas Dep. at 19; Mot., Ex. 16 (Osborne Mem.) at 1-2; see Mot., Ex. 24
(June 20, 2005 Rogers Mem.) (“Rogers Mem.”).) On July 1, Rogers took early retirement and
the EEO investigation was finalized. (See Rogers Mem.; Mather Aff. ¶¶ 23, 30; Chavers Dep. at
69:6-9.) Despite Rogers’ retirement, plaintiff still requested the installation of a panic button due
to her desire to “feel safe in [her] environment,” because the VAMC basement was connected to
an open garage which, she believed, Rogers or “[a]ny vagrant” could enter “at any point in
time.” (Chavers Dep. at 74:16-22.) However, plaintiff never saw Rogers after the June 7, 2005
incident, and her only basis for believing that Rogers would return was “the fear that he
[in]flicted” upon her. (Id. at 74:23-75:3, 75:17-18.) The panic button that plaintiff had requested
was installed in February 2006. (Chavers Decl. ¶ 39.)
On September 14, 2005, plaintiff filed a formal complaint of discrimination regarding the
Rogers incident. (Compl. ¶ 34.) Defendant does not challenge plaintiff’s exhaustion of her
administrative remedies with respect to this claim.
II. THE NON-SELECTIONS
A. Vacancy Announcement NEU-05-90 (August 2005)
On or about August 23, 2005, plaintiff was not selected for the position of Administrative
Office in the Neurology Service, which had been advertised in vacancy announcement NEU-05-
90. (Chavers Dep. at 130:1-5; Chavers Decl. ¶ 56.) On August 25, she emailed Keith Manning
and two other individuals to inquire why she was not selected; to assert that her experience and
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education “extend[ed] far beyond” that of the selected individual; to seek specific information
about the selection process; and to request reconsideration. (Mot., Ex. 22 (“Chavers-Manning
Emails”) at 1.) Manning responded that plaintiff was “qualified, referred[,] but not selected for
the position,” and advised her to contact the Neurology Service if she wished to inquire why she
was not selected. (Id.) On September 1, plaintiff responded to thank Manning and stated that
she would talk to Dr. Pincus, the selecting official. (See id.; Chavers Dep. at 118.) That same
day, plaintiff received an email notification of the non-selection. (See Mot., Ex. 18 (“Kruger-
Deal Emails”) at 2.)
B. Vacancy Announcement HRMS-05-165 (September 2005)
On or about September 30, 2005, plaintiff was not selected for the position of Human
Resources Specialist, which had been advertised in vacancy announcement HRMS-05-165.
(Chavers Decl ¶ 58.) Plaintiff asserts that did not receive a notice of this non-selection until
“after Thanksgiving 2005.” (Kruger-Deal Emails at 1.)
C. Vacancy Announcement OSP-05-221A (March 2006)
On or about March 9, 2006, plaintiff was not selected for the position of Program
Specialist, which had been advertised in vacancy announcement OSP-05-221A. (Chavers Decl.
¶ 59.) Plaintiff asserts that she did not receive the non-selection notice until “late May 2006.”
(Kruger-Deal Emails at 1.)
D. Vacancy Announcement DEN-06-45 (August 2006)
On or about August 7, 2006, plaintiff learned that she had not been selected for the
position of Administrative Officer in the Dental Service, which had been advertised in vacancy
announcement DEN-06-45. (Chavers Decl ¶ 61.) The selecting official was Dr. Glenn Haggan,
chief of the VAMC’s Dental Service, who was aided in making the decision by assistant chief
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Dr. Don Denucci. (Pl.’s SMF at 11 ¶ 35; Chavers Decl. ¶¶ 62-64; Mot., Ex. 2 (Dee Dee Chavers
EEO Aff., July 18, 2007) (“Chavers Aff.”) ¶ 9.) The selected candidate was Angela Johnson, a
non-veteran, who at the time worked at the VAMC in Richmond, Virginia. (Chavers Aff. ¶¶ 13-
14.)
E. Vacancy Announcement NURS-06-64 (September 2006)
On or about September 11, 2006, plaintiff was not selected for the position of Staff
Assistant in the Nursing Service, which had been advertised in vacancy announcement NURS-
06-64. (Chavers Decl. ¶¶ 80, 82.) Feaster, who was the Chief Nurse Executive, was the
selecting official, and the selected candidate was Michelle Newman. (Id. ¶¶ 81, 83.)
F. Plaintiff’s EEO Filings
On September 25, 2006, plaintiff first contacted an EEO counselor at the agency’s Office
of Resolution Management (“ORM”) regarding the non-selections. (Pl.’s SMF at 9 ¶ 28; see
Mot., Ex. 19 (“EEO Counselor’s Report”) at 1.) During informal EEO counseling, plaintiff only
addressed her claims for the fourth and fifth non-selections. (Pl.’s SMF at 9 ¶ 28; see EEO
Counselor’s Report at 3.) On October 25, she was informed that if she were to file a formal EEO
complaint of discrimination, any claim not discussed with ORM might not be accepted for
formal complaint processing. (Pl.’s SMF at 9 ¶ 28.) On November 13, plaintiff filed a formal
EEO complaint alleging retaliation and disability discrimination for all five non-selections. (Id.;
see Mot., Ex. 20 (EEO Compl., Nov. 13, 2006) at 1.)
On December 27, 2006, ORM requested that plaintiff provide (1) the dates and
announcement numbers for the first three non-selections, which had not previously been
discussed with an EEO counselor, and (2) plaintiff’s reasons for failing to raise those three
claims with the EEO office within 45 days of the non-selections’ effective dates, as required by
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29 C.F.R. § 1614.105(a). (See Mot., Ex. 21 (Jan. 19, 2007 Partial Acceptance of EEO
Complaint) (“ORM Decision”) at 2.) On January 10, 2007, plaintiff submitted the requested
information and asserted that she did not comply with the 45-day time limit for the first non-
selection because she was coping with trauma from what she characterized as her “sexual
assault” by Rogers, and because she was not informed about the September 2005 and March
2006 non-selections until approximately 60 days after they occurred. (See id.) ORM declined to
accept those justifications for extending the time limit and, accordingly, dismissed plaintiff’s
claims for the first three non-selections. (Id.)
However, ORM concluded that plaintiff timely pursued her claims based on the August
2006 and September 2006 non-selections and accepted those for further processing. (ORM
Decision at 3.) Defendant does not dispute that plaintiff properly exhausted those non-selection
claims. Plaintiff filed the instant action on October 23, 2007.
ANALYSIS
I. LEGAL STANDARDS
A. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment
shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine issue of material fact, and that the moving party is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). “A dispute about a material fact is not ‘genuine’ unless ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’” Haynes v. Williams, 392 F.3d
478, 481 (D.C. Cir. 2004) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled
to summary judgment against “a party who fails to make a showing sufficient to establish the
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existence of an element essential to that party’s case, and on which that party will bear the
burden of proof at trial.” Waterhouse v. District of Columbia, 298 F.3d 989, 992 (D.C. Cir.
2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
In considering a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255; see also Wash. Post. Co. v. U.S. Dep’t of Health and Human Servs., 865 F.2d 320, 325
(D.C. Cir. 1989). The non-moving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits or other competent
evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ.
P. 56(e); Celotex, 477 U.S. at 324. If the non-movant fails to point to “affirmative evidence”
showing a genuine issue for trial, Anderson, 477 U.S. at 257, or “[i]f the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50(internal citations omitted). “While summary judgment must be approached with special caution
in discrimination cases, a plaintiff is not relieved of her obligation to support her allegations by
affidavits or other competent evidence showing that there is a genuine issue for trial.” Calhoun
v. Johnson, No. 95-2397, 1998 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff’d No. 99-5126,
1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 1999) (internal citation omitted).
B. Title VII and Rehabilitation Act
Under Title VII of the Civil Rights Act of 1964, it is an “unlawful employment practice”
for employers “to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). It is also unlawful to retaliate against an
employee because he “has opposed any practice made an unlawful employment practice” by
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Title VII or because she “has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing” under Title VII. Id. § 2000e-3(a). Similarly, the
Rehabilitation Act prohibits federal agencies from engaging in employment discrimination
against disabled individuals. See 29 U.S.C. § 794(a). The Act employs the same standards to
define discrimination as those employed in cases arising under the Americans with Disabilities
Act of 1990 (“ADA”). See id. § 794(d); see also Breen v. Dep’t of Transp., 282 F.3d 839, 841
(D.C. Cir. 2002) (applying ADA employment discrimination standards to Rehabilitation Act
claim).
Traditionally, courts have examined Title VII and Rehabilitation Act claims for
discrimination under the three-step burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). However, where an employer has asserted legitimate, non-
discriminatory reasons for the actions being challenged by the plaintiff,
the district court must resolve one central question: Has the employee produced
sufficient evidence for a reasonable jury to find that the employer’s asserted non-
discriminatory reason was not the actual reason and that the employer
intentionally discriminated against the employee on the basis of race, color,
religion, sex, or national origin?
Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). This principle
applies equally to claims of retaliation under Title VII and disability discrimination. See Jones v.
Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009); Adeyemi v. District of Columbia, 525 F.3d 1222,
1226 (D.C. Cir. 2008).
A plaintiff has the burden of persuasion to show that a defendant’s proffered non-
discriminatory reason for the challenged action is a pretext. Morgan v. Fed. Home Loan
Mortgage Corp., 328 F.3d 647, 654 (D.C. Cir. 2003). A plaintiff can carry this burden by
showing that a non-discriminatory reason offered by a defendant is false, Montgomery v. Chao,
546 F.3d 703, 707 (D.C. Cir. 2008), or otherwise “presenting enough evidence to allow a
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reasonable trier of fact to conclude that the employer’s proffered explanation is unworthy of
credence.” Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir. 2008) (internal quotation marks
omitted). Where “the employer’s stated belief about the underlying facts is reasonable in light of
the evidence, however, there ordinarily is no basis for permitting a jury to conclude that the
employer is lying about the underlying facts,” and summary judgment is appropriate. Brady, 520
F.3d at 495; see also Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23, 27-28 (D.C. Cir. 1997)
(“[I]f [a plaintiff] is unable to adduce evidence that could allow a reasonable trier of fact to
conclude that [the defendant’s] proffered reason was a pretext for discrimination, summary
judgment must be entered against [the plaintiff].”)
II. COUNT 1: HOSTILE WORK ENVIRONMENT
Plaintiff contends that she was “subjected to physically threatening conduct sufficient to
qualify as hostile workplace harassment” during the incident where Rogers “block[ed] her path
with his heavy duty steel work cart” and “demanded that she give him a kiss.” (Opp’n at 21.)
She argues that “[a]lthough this particular incident occurred only one time, it was sufficient to
create a hostile environment.” (Id.) The Court disagrees, for the Rogers incident does not rise to
the level of severity necessary to be actionable on its own under Title VII.
To sustain a hostile work environment claim, “a plaintiff must show that [her] employer
subjected [her] to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.’” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (citations omitted). This standard is designed to be
“sufficiently demanding” so that “Title VII does not become a ‘general civility’ code.”
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting Oncale v. Sundowner
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Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). “‘[C]onduct must be extreme to amount to a
change in the terms and conditions of employment,’” George v. Leavitt, 407 F.3d 405, 416 (D.C.
Cir. 2005) (quoting Faragher, 524 U.S. at 788) (emphasis added), and “a sexually objectionable
environment must be both objectively and subjectively offensive, one that a reasonable person
would find hostile or abusive, and one that the victim in fact did perceive to be so.” Faragher,
524 U.S. at 787.
“While a single, unsolicited physical advance or comment may be inappropriate, such
conduct does not automatically amount to a Title VII violation.” Fowler v. District of Columbia,
404 F. Supp. 2d 206, 211 (D.D.C. 2005). Rather, such “‘isolated incidents’” must be
“‘extremely serious’” in order to “‘amount to [a] discriminatory change[] in the terms and
conditions of employment.’” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001)
(rejecting sexual harassment claim based on single incident) (quoting Faragher, 524 U.S. at
788). For example, in the cases cited by plaintiff, other courts have held that isolated incidents
of violent physical contact can rise to the level of altering employment conditions. See Smith v.
Sheahan, 189 F. 3d 529, 531-33 (11th Cir. 1999) (co-worker “called [plaintiff ] a ‘bitch,’
threatened to ‘fuck [her] up,’ pinned her against a wall, and twisted her wrist severely enough to
damage her ligaments, draw blood, and eventually require surgical correction”); Lockard v. Pizza
Hut, Inc., 162 F.3d 1062, 1067, 1072 (10th Cir. 1998) (restaurant customer grabbed plaintiff by
her hair and then grabbed her breast and placed his mouth on it); Redman v. Lima City Sch. Dist.
Bd. of Educ., 889 F. Supp. 288, 291-93 (N.D. Ohio 1995) (co-worker engaged in “physical
assault” by forcing plaintiff into workplace basement, forcing her against wall, and fondling and
rubbing against her in a sexual manner until she vomited).3
3
The remaining case cited by plaintiff is distinguishable because it appears to have
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By contrast, Rogers did not act violently during the June 7, 2005 incident. Nor did he
initiate any physical contact with plaintiff or engage in lewd sexual commentary. Rather, for
about one minute in a “brightly lit” “busy hallway” where other people were present (Chavers
Dep. at 54:4-55:1), Rogers blocked plaintiff’s exit path from a classroom with a steel cart, told
her he would not move until she gave him a kiss, but did not put his hands on plaintiff, even
when she attempted to physically move him away. (See Pl.’s SMF at 2-3 ¶¶ 5-10; Chavers Dep.
at 73:4-16.) Other than obstructing plaintiff’s path, Rogers took no physical action against her.
(See Chavers Dep. at 73:17-20.)
Notwithstanding plaintiff’s subjective feelings about the event, such conduct is far less
extreme than isolated incidents of nonconsensual physical contact that this Court and others have
found to be insufficiently severe to sustain a hostile work environment claim. See, e.g., Fowler,
404 F. Supp. 2d at 211 (plaintiff’s colleague allegedly had “‘announced’ during a faculty
meeting that he was ‘turned on by the dress that a teacher was wearing’ and then ‘squeezed the
teacher’s thigh’” (quoting plaintiff’s comments)), aff’d, 210 F. App’x 4, 5 (D.C. Cir. 2006);
Tatum v. Hyatt Corp., 918 F. Supp. 5, 6-7 (D.D.C. 1994) (co-worker wrapped his arms around
plaintiff’s neck and body, rubbed against plaintiff as if to simulate sexual intercourse, made
comments about her physical attractiveness, and placed a piece of ice in her skirt pocket); Paul v.
Northrop Grumman Ship Sys., 309 F. App’x 825, 826 (5th Cir. 2009) (co-worker confronted
plaintiff for “approximately a minute and a half” and made contact with her breasts, hips, and
buttocks “in the presence of another supervisor who did not intervene”); Meriwether v.
actually involved multiple incidents, as well as nonconsensual intimate contact. See Barrett v.
Omaha Nat’l Bank, 584 F. Supp. 22, 24-25, 29-30 (D. Neb. 1983) (rejecting harassment claim on
respondeat superior grounds but finding that co-worker’s activities during business trip, “taken
in their totality,” sustained prima facie showing of sexual harassment, where conduct included
sexual comments and touching plaintiff’s crotch, thighs, and breast while traveling to and
attending conference), aff’d, 726 F.2d 424 (8th Cir. 1984).
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Caraustar Packaging Co., 326 F.3d 990, 992-93 (8th Cir. 2003) (co-worker forcefully grabbed
plaintiff’s buttock near her upper thigh and later joked about the incident); Saxton v. Am. Tel. &
Tel. Co., 10 F.3d 526, 528, 534-35 (7th Cir. 1993) (supervisor put his hand on plaintiff’s leg and
kissed her until she pushed him away, and in later incident, lurched at plaintiff and tried to grab
her). Based on this case authority, the Court concludes that Rogers’ alleged conduct was
similarly “deplorable but not so severe or persistent as to constitute a change in terms and
conditions of employment.” Williams v. Verizon Wash., DC, Inc., 266 F. Supp. 2d 107, 124
(D.D.C. 2003) (rejecting sexual harassment claim based on incident where plaintiff’s co-worker
“repeatedly told [her] ‘you know you want me’ and tried to get her agreement to meet him in a
hotel room”). Therefore, the Court grants summary judgment as to Count 1.
III. COUNTS 2 AND 3: NON-SELECTION
Plaintiff alleges that defendant discriminated against her on the basis of her disability
(Count 2) and retaliated against her for complaining about sexual harassment (Count 3) by
declining to select her for five positions within the agency. With respect to the non-selections
for vacancy announcements NEU-05-90, HRMS 05-165, and OSP-05-221A, plaintiff concedes
that she did not administratively pursue her claims within the time limit imposed by regulation,
and the Court rejects her arguments for applying the doctrine of equitable tolling. With respect
to the non-selections for vacancy announcements DEN-06-45 and NURS-06-64, defendant
contends that the selected individuals were the more qualified applicants. Even assuming
without deciding that plaintiff qualifies as “disabled” under the Rehabilitation Act,4 the Court
4
The Court notes that the D.C. Circuit has recently clarified that the ADA Amendments
Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008), which went into effect on January 1,
2009, does not have retroactive effect. See Lytes v. D.C. Water & Sewer Auth., 572 F.3d 936,
940 (D.C. Cir. 2009). Therefore, contrary to plaintiff’s argument (see Opp’n at 33-34), the Act
would not govern the determination of whether plaintiff is “disabled” for the purposes of her
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finds that plaintiff has failed to “produce sufficient evidence that [her] employer’s asserted
legitimate non-discriminatory reason[s] . . . [were] not the actual reason[s] and that [plaintiff]
suffered discrimination on an impermissible ground.”5 Baloch, 550 F.3d at 1197.
A. Failure to Exhaust
Exhaustion under the Rehabilitation Act is a jurisdictional requirement. The Act “limits
judicial review to employees ‘aggrieved by the final disposition’ of their administrative
‘complaint,’ thereby mandating administrative exhaustion.” Spinelli v. Goss, 446 F.3d 159, 162
(D.C. Cir. 2006) (quoting 29 U.S.C. § 794a(a)(1)). Where there is “no administrative complaint
and thus no final disposition of one,” id., courts must dismiss the disability claim for lack of
subject matter jurisdiction. See, e.g., Rand v. Geithner, 609 F. Supp. 2d 97, 100 (D.D.C. 2009).
By contrast, exhaustion under Title VII is mandatory but not jurisdictional, see Douglas v.
Donovan, 559 F.3d 549, 556 n. 4 (D.C. Cir. 2009), and non-exhaustion must be raised as an
affirmative defense. See Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997).
Federal employees who believe that they have been the victim of disability discrimination
or retaliation must contact an EEO counselor with forty-five days of the allegedly discriminatory
act (or its effective date, in the case of a personnel action). 29 C.F.R. § 1614.105(a)(1); see also
id. § 1614.103(a) (defining “retaliation” complaints as “discrimination” complaints for purposes
of contacting EEO counselor). The positions advertised in vacancy announcements NEU-05-90,
HRMS 05-165, and OSP-05-221A were filled, respectively, on August 23, 2005; September 30,
2005; and March 9, 2006. (See Chavers Dep. at 130:1-5; Compl. ¶ 39-40.) Yet plaintiff’s first
contact with an EEO counselor regarding any of her non-selection claims did not occur until
discrimination claim.
5
The Court’s conclusion that plaintiff has failed to cast doubt upon her employer’s
reasons is equally applicable to her claims under the Rehabilitation Act and Title VII.
15
September 25, 2006, over a year after the first non-selection and over six months after the third
one. Because ORM rejected as untimely her attempt to file an administrative complaint
regarding her first three non-selections, there was “no administrative complaint and thus no final
disposition of one” for those three claims. Spinelli, 446 F.3d at 162.
Plaintiff argues that the Court should equitably toll the time limit for exhausting her first
three non-selection claims because she “was dealing with the trauma of Mr. Rogers’ sexual
assault,” and she “was not aware that [d]efendant was retaliating and discriminating against her
until she was able to observe a pattern of retaliation and discrimination based on [d]efendant’s
continued failure to select her for promotion . . . .” (Opp’n at 25-26.) The doctrine of equitable
tolling is not applicable to jurisdictional deadlines such as those imposed by the Rehabilitation
Act’s exhaustion requirements. See Slinger Drainage, Inc. v. E.P.A., 237 F.3d 681, 682 (D.C.
Cir. 2001) (noting Supreme Court’s comment that mandatory and jurisdictional time limits “‘are
not subject to equitable tolling’” (quoting Stone v. Immigration & Naturalization Serv., 514 U.S.
386, 405 (1995)). And although the doctrine can be applied to Title VII’s non-jurisdictional
exhaustion deadlines, plaintiff’s case does not merit its application.
“[C]ourts should exercise their equitable power to toll the statute of limitations ‘only in
extraordinary and carefully circumscribed instances.’” Belton v. Shinseki, 637 F. Supp. 2d 20, 24
(D.D.C. 2009) (quoting Mondy v. Sec’y of Army, 845 F.2d 1051, 1057 (D.C. Cir. 1988)). In Title
VII cases, equitable tolling of a statute of limitations can be appropriate where a party “make[s]
diligent but technically defective efforts to act within a limitations period,” was “misled about
the running of a limitations period,” or “neither knew nor had reason to know about the limit.”
Bowden, 106 F.3d at 438. Courts consider “a plaintiff’s intelligence and familiarity with the
process” when determining whether equity counsels in favor of excusing a failure to exhaust.
16
Broom v. Caldera, 129 F. Supp. 2d 25, 29 (D.D.C. 2001).
Here, there is no evidence that plaintiff was unaware of the exhaustion time limit or that
defendant prevented her from contacting an EEO counselor. See Hayes v. Chao, 592 F. Supp. 2d
51, 57 (D.D.C. 2008); see also Mondy, 845 F.2d at 1057. In addition, the record shows that even
before any deadline had passed for the non-selections at issue, plaintiff was familiar with the
process of filing administrative grievances. She reported the Rogers incident to the EEO office
on June 14, 2005, spoke with an ORM representative about the incident on August 10, and filed
a formal discrimination complaint on September 14. (See Compl. ¶¶ 33-34; Reply, Ex. 3 (EEO
Compl., Sept. 14, 2005) ¶ 13.) She was also familiar with filing a non-selection complaint,
having done so in 2004 to seek “feedback” on why she was not selected for several positions.
(See Chavers Dep. at 101-02.) Finally, plaintiff’s argument that she was too traumatized by the
June 2005 Rogers incident to comply with EEO procedures following the August 2005 non-
selection is undermined by the fact that (1) she was contemporaneously complying with EEO
procedures for the Rogers incident, and (2) she had no difficulty emailing Keith Manning on
August 25 to inquire why she was not selected for the NEU-05-90 position and to challenge the
selected candidate’s qualifications as inferior to her own. (Compare Chavers Dep. at 130-31 and
Chavers-Manning Emails at 1 with Chavers Dep. at 128:8-24 (reading her prior explanation in
Kruger-Deal emails that she did not timely exhaust her administrative complaint because “[her]
life as [she] knew it was totally disrupted”).) Nothing in the record suggests that following her
second and third non-selections, plaintiff could not have exercised similar diligence in pursuing
an EEO complaint or investigating and challenging the qualifications of the individuals selected
17
for the HRMS 05-165 and OSP-05-221A positions.6 The Court therefore concludes that the facts
underlying plaintiff’s explanations “do[] not constitute the type of ‘extraordinary’
circumstance[s] that merit[] equitable tolling of the forty-five day limit.” Belton, 637 F. Supp.
2d at 24.
Count 2 will be dismissed for lack of subject matter jurisdiction to the extent that it is
based on the non-selections for vacancy announcements NEU-05-90, HRMS 05-165, and OSP-
05-221A. See Spinelli, 446 F.3d at 161-62; Rand, 609 F. Supp. 2d at 100. Summary judgment
will be granted on Count 3 to the extent that it is based on those same non-selections.
B. Vacancy Announcement DEN-06-45
It is undisputed that for the Dental Service’s Administrative Officer position advertised in
vacancy announcement DEN-06-45, Haggan interviewed eleven people, asked them the same
questions, and reviewed applications with three characteristics in mind (with particular emphasis
on the first): “(1) the ability to act independently, (2) experience in supervising other employees,
and (3) overall knowledge of the VA and how it operated.” (Def.’s SMF ¶¶ 37, 39.)7 It is also
6
There is no merit to plaintiff’s argument that equitable tolling is appropriate because the
non-selections were part of a “pattern and practice of discrimination” that constituted a
“continuing violation,” such that she could not have known to pursue the claims until the
supposed pattern of retaliation became obvious. (Opp’n at 26.) This argument is unpersuasive
as a matter of both law and fact. First, not only are “pattern-or-practice claims . . . generally
brought by a class rather than an individual plaintiff,” but “‘[c]ourts have been wary of plaintiffs
transforming what would otherwise be claims of discrete discrimination into a pattern and
practice claim to avoid the statute of limitations . . . .” Hayes, 592 F. Supp. 2d at 56 (quoting
Major v. Plumbers Local Union No. 5, 370 F. Supp. 2d 118, 127 (D.D.C. 2005)). This is
because denials of transfers and failures to promote or hire are “[d]iscrete acts” that are “easy to
identify,” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002), and “a plaintiff must
satisfy the filing requirements for each discrete act of discrimination.” Hayes, 592 F. Supp. 2d at
56; accord Morgan, 536 U.S. at 114. Second, plaintiff’s argument is undermined by the
evidence, because her first non-selection in August 2005 was already sufficient, standing alone,
to “raise[] many concerns” in her mind since she perceived herself as being more qualified than
the applicant. (Chavers-Manning Emails at 1.)
7
Plaintiff denies that Haggan considered these characteristics (see Pl.’s SMF at 12 ¶ 39),
18
undisputed that plaintiff and Angela Johnson were among the top-ranked applicants. (Id. ¶ 38.)8
Haggan ultimately selected Angela Johnson over plaintiff because Johnson gave a “superior”
response to a hypothetical “Fee Basis Scenario” designed to gauge applicants’ ability to act
independently in the workplace, and because she satisfied Haggan’s other two criteria since she
was already supervising over thirty employees at the Richmond VAMC and had previously
worked in the D.C. VAMC’s director’s office. (See id. ¶¶ 40-42; Mot., Ex. 3 (Glenn Haggan
Dep., Nov. 3, 2008) (“Haggan Dep.”) at 16-22, 31-32.)9
“[An] employer has discretion to choose among equally qualified candidates, provided
the decision is not based upon unlawful criteria.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 259 (1981). Therefore, “[i]n order to justify an inference of discrimination,” the
“qualifications gap” between candidates “must be great enough to be inherently indicative of
discrimination.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). No such qualifications
gap exists here.
Plaintiff does not dispute that Johnson had experience as a supervisor within the VA
system (see Pl.’s SMF at 13-14 ¶ 42; see also supra note 7), nor does plaintiff assert that her own
but this denial does not comply with Local Civil Rule 7 because it is not supported by a citation
to record evidence. See Local Civ. R. 7(h) (requiring non-moving party’s statement of factual
issues to “include references to the parts of the record relied on to support the statement”). As
such, plaintiff has not raised any genuine issue with respect to this factual assertion by defendant.
See Adesalu v. Copps, 606 F. Supp. 2d 97, 103 & n. 4 (D.D.C. 2009) (declining, in Title VII
case, to recognize plaintiff’s denial of defendant’s asserted material fact where he failed to
comply with Rule 7’s requirement that denials must be supported by citation to record evidence).
8
Plaintiff denies this (see Pl.’s SMF at 12 ¶ 38), but the denial is unsupported by any
record citation, and plaintiff admits elsewhere that Haggan stated that she was one of the top-
ranked candidates. (See Chavers Decl. ¶ 67.) The denial therefore fails to create a genuine
factual dispute. See supra note 7.
9
Plaintiff denies these were Haggan’s reasons (see Pl.’s SMF at 13-14 ¶¶ 41-42), but the
denial is unsupported by any record citation, and plaintiff admits that Haggan claimed that he
selected Johnson because of her response to the Fee Basis Scenario. (See Chavers Decl. ¶ 68.)
The denial therefore fails to create a genuine factual dispute. See supra note 7.
19
“overall knowledge of the VA and how it operated” was significantly superior to Johnson’s.
(See Pl.’s SMF at 12 ¶ 39.) Rather, she argues that she was more qualified than Johnson because
she possessed credentials that Johnson lacked, including a college degree, and greater
supervisory experience from her time in the military. (See Opp’n at 27.) She also suggests
Johnson’s response to the Fee Basis Scenario was not superior to her own, because Johnson’s
response was inconsistent with VA handbook regulations. (Id. at 13; Pl.’s SMF at 13 ¶ 41.).
Plaintiff’s contentions are beside the point. They are based only upon “her own self-
perception of her credentials, which is irrelevant for purposes of establishing discriminatory or
retaliatory conduct.” Talavera v. Fore, No. 07-CV-720, 2009 WL 2731275, at *15 (D.D.C. Aug.
31, 2009) (Bates, J.); accord Waterhouse v. District of Columbia, 124 F. Supp. 2d 1, 7 (D.D.C.
2000) (“‘[P]laintiff’s perception of h[er]self, and of h[er] work performance, is not relevant.’”
(quoting Smith v. Chamber of Commerce of the U.S., 645 F. Supp. 604, 608 (D.D.C. 1986)),
aff’d, 298 F.3d 989, 995 (D.C. Cir. 2000). “It is the perception of the decisionmaker which is
relevant,” Smith, 645 F. Supp. at 608, and Haggan concluded that Johnson’s experiences and
interview best reflected the characteristics he sought. “Selecting a pool of qualified candidates
based upon their written credentials and then making a final selection based upon personal
interviews is an obviously reasonable method of hiring a professional employee.” Fischbach v.
Dist. of Columbia Dep’t of Corr., 86 F.3d 1180, 1183-84 (D.C. Cir. 1996). Because Haggan
“had the benefit of [his] prior determination” that plaintiff and Johnson were already among the
most qualified applicants, and because his hypothetical question “concerned the way in which
the applicant would approach the job[,] [t]here is nothing the least bit fishy about the
interviewer[’s] giving slightly less emphasis to the applicants’ credentials” – assuming arguendo
that Haggan did so – “than to the manner in which each candidate proposed to do the job . . . .”
20
Id. at 1184 (footnote omitted).
Plaintiff has provided no evidence to cast doubt on defendant’s assertion that Haggan
believed Johnson had sufficient experience as a supervisor and familiarity with the VA system.
And because Haggan concluded that Johnson’s response to his hypothetical was “[e]xactly” what
he would “expect [his] assistant to do” in that situation (Haggan Dep. at 22:15-22), it is irrelevant
that plaintiff believes that Haggan should have preferred her response.10 “Once the employer has
articulated a non-discriminatory explanation for its action, as did the [agency] here, the issue is
not ‘the correctness or desirability of the reasons offered but whether the employer honestly
believes in the reasons it offers.’” Fischbach, 86 F.3d at 1183 (quoting McCoy v. WGN Cont’l
Broad. Co., 957 F.2d 368, 373 (7th Cir. 1992)) (brackets and ellipses omitted). In other words, a
district court judge does not sit as a “‘super-personnel department that reexamines an entity’s
business decisions.’” Id. (quoting Dale v. Chi. Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986);
accord Adeyemi, 525 F.3d at 1227.
Because Haggan’s “stated belief[s] about the underlying facts” regarding his decision to
select Johnston for Dental Service position are reasonable “in light of the evidence,” Brady, 520
F.3d at 495, and because plaintiff has failed to cast doubt upon the proffered reason for her non-
selection,11 the Court grants summary judgment as to Counts 2 and 3 to the extent they are based
10
It is also irrelevant whether plaintiff’s response was more consistent with the VA
handbook than Johnson’s. The cited regulation does not, on its face, establish that Johnson’s
response was objectively inferior to plaintiff’s (see Opp’n, Ex. 14 (VA Handbook 1130.01) ¶
13(a)), so it is not the Court’s place to second-guess Haggan’s preference for one response over
the other.
11
The Court rejects plaintiff’s suggestion that discrimination should be inferred from
defendant’s failure to comply with certain reporting and notice regulations governing situations
where an agency overlooks a candidate with “veterans[’] preference status to select a non-
veteran non-preference candidate with inferior qualifications.” (Opp’n at 28.) As discussed,
there is no evidence that Johnson possessed inferior qualifications. In addition, any failure to
comply with reporting requirements is not “significantly probative” of discrimination, Anderson,
21
on this non-selection.
C. Vacancy Announcement NURS-06-64
As the chief of the Nursing Service, Feaster decided that the person who would fill the
NURS-06-64 vacancy “would work directly with [her] as [her] executive assistant.” (Mot., Ex. 4
(Geraldine Feaster Dep., Oct .23, 2008) (“Feaster Dep.”) at 9:8-10.) That individual would serve
as her “right-hand person[] to manage all of the business of the office,” so Feaster “decided that
“it was important for [her] to make [the selection] decision” directly instead of through an
interview panel. (Id. at 9:10-14.) It is undisputed that Feaster interviewed three people: plaintiff,
Michelle Newman, and another individual who held the same position in the Baltimore VA
Medical Center. (Pl.’s SMF at 15 ¶ 46.) In addition, it is undisputed that Feaster selected ten
questions from a group of performance-based questions and posed these questions to each
candidate. (See id. at 15 ¶ 48; see also supra note 1.)
477 U.S. at 249, because both Haggan and Feaster believed that no such reporting was required.
(See Haggan Dep. at 24:12-25:3; Feaster Dep. at 30:4-16.) Indeed, case law suggests that
plaintiff’s veteran status may have been irrelevant to her application because “veterans’
preference only applies to initial employment, not to movement of an incumbent employee from
one job to another within an agency.” Glenn v. U.S. Postal Serv., 939 F.2d 1516, 1523 (11th Cir.
1991); accord Brown v. Dep’t of Veterans Affairs, 247 F.3d 1222, 1224 (Fed. Cir. 2001)
(“[V]eterans are not accorded any preference under the [Veterans’ Preference Act] when seeking
promotion or intra-agency transfers.”).
Plaintiff also failed to discredit Haggan’s deposition testimony that at the time he selected
Johnson, he was unaware that plaintiff had filed an EEO complaint regarding the Rogers
incident. (See Haggan Dep. at 33:18-22.) Plaintiff admits that she has no “independent
knowledge” or “independent information” that would establish whether Haggan was aware of
her EEO activity during the summer of 2005. (See Chavers Dep. at 132:8-15.) All she offers is
speculation, based on her time working in the VAMC director’s office for several months in
2004, that because “it was common practice for the EEO Specialist or Manager to brief the
[VAMC] Director concerning EEO complaints filed by employees” and for “[t]he Director to
then brief[] the service chiefs,” and because Haggan was a service chief, that Haggan “would
have attended meetings where EEO complaints were discussed.” (See Opp’n at 30.) Plaintiff’s
speculation about what might have happened a year after she stopped working in the Director’s
office is not evidence that would permit a reasonable jury could to conclude that Haggan lied in
his deposition.
22
Feaster explained that she “thought [Newman] would be a good fit for [her],” and that “in
fact, [Newman] was [a good fit].” (Feaster Dep. at 21:12-14.) From Feaster’s perspective, even
though plaintiff and Newman had “similar experiences” and both had “excellent [office] skills,”
Newman’s experiences, qualifications, and references “made her a better candidate.” (Id. at
22:9-17.) Newman had previously managed a legal office as an executive secretary, and she was
familiar with computer programs that Feaster felt she needed in her own office. (See Def.’s SMF
¶¶ 49-51; Feaster Dep. at 20-22, 24-27.)12 Newman came with “superb” recommendations, and
Feaster was “very impressed” with “[h]ow she had managed her career” in her previous position.
(Feaster Dep. at 21:7-12.) Feaster believed that Newman’s prior experience working for three
attorneys more closely matched what she wanted in a staff assistant, namely someone who
“would fit well” in and “manage the flow” of Feaster’s “very busy office, [with] lots of
documents coming in . . . .” (Id. at 26:21-27:6; see also id. at 20-21.)
As with the Dental Service vacancy, plaintiff does not dispute the fact of Newman’s
specific credentials or experiences. Rather, she argues that she was more qualified than Newman
because she possessed credentials and experience that Newman lacked, including an
undergraduate degree, supervisory experience from her time in the military, and experience from
a five-month temporary detail to the Staff Assistant position under Feaster’s predecessor. (See
Opp’n at 27-28; Chavers Decl. ¶ 84; Chavers Aff. ¶ 30.) For the reasons already discussed,
plaintiff’s disagreement with Feaster’s ultimate assessment of her qualifications is insufficient to
cast doubt upon the defendant’s proffered reasons for the non-selection. See supra Section III.B
12
Plaintiff denies the fact of Newman’s qualifications and recommendations (see Pl.’s
SMF at 15 ¶¶ 50-51), but the denial is unsupported by any record citation and therefore fails to
create a genuine factual dispute. See supra note 7.
23
& note 11.13 Accordingly, summary judgment is granted as to Counts 2 and 3 to the extent they
are based on this non-selection.
CONCLUSION
For the foregoing reasons, the Court grants defendant’s motion. Plaintiff’s claims under
Count 2 with respect to vacancy announcements NEU-05-90, HRMS 05-165, and OSP-05-221A
are dismissed for lack of subject matter jurisdiction. Summary judgment is granted as to all
other claims. A separate Order will accompany this Memorandum Opinion.
/s/
ELLEN SEGAL HUVELLE
United States District Judge
Date: November 5, 2009
13
Plaintiff also contends that her qualifications were demonstrably superior because
Feaster asked plaintiff to train Newman since the latter was not familiar with certain Nursing
Service “management systems.” (See Opp’n at 28; Chavers Dep. at 146:5-7.) This does not
undercut Feaster’s stated rationale that she perceived Newman as being better able “to manage
the flow” of that office. (See Feaster Dep. at 26:21-27:6.)
In addition, for the reasons already discussed, see supra note 11, plaintiff also fails to
provide evidence from which a reasonable jury could infer that Feaster knew of plaintiff’s prior
EEO activity when she selected Newman. While there is evidence that McNicholas told Feaster
about Rogers’ “behavior” (see McNicholas Dep. at 23:21-24:3), there is no evidence that Feaster
ever learned that plaintiff filed an EEO complaint about that behavior.
24