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Webber v. Esper

United States District Court, E.D. Oklahoma

September 30, 2019

MELVA WEBBER, Plaintiff,
v.
MARK T. ESPER, Secretary, Department of the Army, in his official capacity, Defendant.

          OPINION AND ORDER

          KIMBERLY E. WEST, UNITED STATES MAGISTRATE JUDGE.

         This matter comes before the Court on Defendant's Motion for Summary Judgment and Memorandum in Support Thereof (Docket Entry # 89). Upon review and consideration of the filings of the parties, this Court renders the following ruling.[1]

         Plaintiff, a 67-year old, African-American female, was an employee at the McAlester Army Ammunition Plant for several years prior to applying for an open Management Analyst position (GS-9) in the Spring of 2010. At the time she applied for the position, Plaintiff was employed in a Management Assistant position (GS-7).

         The Management Analyst position required the following job duties: (1) administering the records management program, including monitoring, inspecting, and preserving Army records at the plant and approving or disapproving acquisition and reallocation requests for relevant equipment; (2) administering the copier program, including approving and disapproving requests for copiers, generating reports, and analyzing data to determine future needs; (3) serving as the forms management officer, including review and approval of request for new forms, standardization of forms, and design of new forms; and (4) serving as forms control officer, which involved ordering and distributing forms and publications for the installation. In carrying out the job duties, the employee was expected to conduct studies and recommend improvements, communicate well with individuals in a variety of positions within and outside the organization, take initiative in developing the best approaches to potential problems, keep supervisors informed of progress and potential problems, and make critical decisions regarding the best way to accomplish goals for the records, copier, and forms management programs.

         To qualify for the position, an applicant was required to have one year of specialized experience at the GS-7 level and experience in (1) records and forms management; (2) formulating written and verbal summaries with results and conclusions; and (3) evaluating and analyzing information, interpreting guidance, and conducting studies for recommendations.

         Shannon Dannelley, who served as the Director of Information Management at the ammunition plant in the Spring of 2010, had been Plaintiff's first level supervisor since at least 2008. In 2010, at the time Plaintiff applied for Management Analyst position, David Clemons, Chief of IT Services of the Management Division, was Plaintiff's first level supervisor, and Ms. Dannelley supervised Mr. Clemons. Although Mr. Clemons was the selecting official for the Management Analyst position, because he was new to his position and Ms. Dannelley was the approving official, she assisted with the selection for the Management Analyst position.

         Once the applications were received, the Civilian Personnel Advisory Center, which performed human resources functions for civilian employees at the ammunition plant, reviewed the applications and generated a referral list of applicants who were considered qualified for the position.

         Ms. Dannelley and Mr. Clemons reviewed the resumes of the qualified candidates and both decided Jeneal Dotte was the best qualified candidate for the Management Analyst position. Mr. Clemons submitted Ms. Dotte's name to Ms. Dannelley for approval, which she approved and then advised the Office of Equal Employment Opportunity and the Civilian Personnel Advisory Center of Ms. Dotte's selection for the position.

         According to Ms. Dannelley, Ms. Dotte was selected for the position “because her experience included significant leadership experience and independence in carrying out her relevant duties, which were carried out by way of her position as a Sergeant in the Army Reserves, including serving as a lead running the post office in Baghdad, Iraq, as well as experience serving as Suggestion Program Coordinator at [the ammunition plant].” She also had experience with the Freedom of Information Act and with the Privacy Act. Although Plaintiff was qualified for the position, Plaintiff had less leadership experience than Ms. Dotte. Ms. Dannelley stated that Ms. Dotte's experience was important to the position because the position would involve significant interaction with people in and outside the organization. She believed Ms. Dotte's supervisory experience would help her with performing lead functions as records manager.

         After Ms. Dotte was selected for the position, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), claiming she was denied the Management Analyst position based upon her race and age. Her claims were denied by final order on July 8, 2014, and the agency's final order was affirmed on appeal by the EEOC on September 22, 2016.

         Plaintiff commenced this action on December 13, 2016, alleging race discrimination in violation of Title VII of the Civil Rights Act (“Title VII”) of 1964 and age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) of 1975. Plaintiff also asserts retaliation and discrimination associated with Defendant's actions during 2012 and 2013. Defendant filed the subject Motion, contending Plaintiff cannot prevail on her race and age discrimination claims.[2]

         Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Universal Money Centers v. A.T. & T., 22 F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052 (1994). The moving party bears the initial burden of showing that there is an absence of any issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists when “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining whether a genuine issue of a material fact exists, the evidence is to be taken in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the opposing party must come forward with specific evidence, not mere allegations or denials of the pleadings, which demonstrates that there is a genuine issue for trial. Applied Genetics v. First Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).

         The Court will not consider statements of fact, or rebuttals thereto, which are not material or are not supported by competent evidence. Fed.R.Civ.P. 56(c)(1)(A), 56(e)(2), 56(e)(3). Only admissible evidence may be considered when ruling on a motion for summary judgment. Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303, 1314 (10th Cir. 2005) (citation omitted) (holding that hearsay evidence is not acceptable in opposing a summary judgment motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985). Affidavits must be based on personal knowledge and must set forth facts that would be admissible evidence at trial. Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995)(quotations and citation omitted). “Conclusory and self-serving affidavits are not sufficient.” Id.

         To establish a case of intentional discrimination, Plaintiff has two options - she may satisfy her burden of proof by offering direct evidence of discriminatory intent or she may demonstrate such intent indirectly by following the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Thomas v. Denny's, Inc., 111 F.3d 1506, 1509 ...


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