Mcmullen v. Carter

BRIEF IN SUPPORT re MOTION for Summary Judgment

M.D. Pa.April 21, 2017

1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Gary McMullen : No. 1:15-cv-02385 : : (Caldwell, J.) vs. : : Ash Carter, Secretary of : Defense : Filed Electronically DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I. Introduction This is an employment discrimination case where McMullen is suing the Department of Defense, Defense Logistics Agency (DLA) for age and disability (leg amputee) discrimination because he was not selected for the reality specialist position.1 The undisputed record demonstrates that McMullen’s non-selection had no connection to either his age or his disability. As such, the DLA is entitled to judgment in its favor because McMullen’s disability and age claims fail as a matter of law. 1 In his complaint, McMullen claims there were two vacant reality specialist positions (doc. 1 at ¶¶16-21), but the undisputed record shows there was one vacant reality specialist position and two job announcements for the one position. (DLA statement of material facts ¶8.) One job announcement was posted for the general public and another job announcement was posted for government employees. Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 1 of 13 2 II. Procedural History McMullen filed this employment discrimination action on December 11, 2015, and the DLA filed an answer on March 14, 2016. Fact discovery was complete on February 28, 2017. Following an enlargement of time, the DLA files its motion for summary judgment and supporting brief. III. Statement of Relevant Facts McMullen is employed at the DLA in New Cumberland as a lead supply technician. (DLA’s statement of material facts (SMF) ¶¶1, 4.) The DLA issued a job opportunity announcement (JOA) for a reality specialist position. (Id. ¶8.) HR deemed eleven applicants, including McMullen, qualified for the reality specialist position. (Id. ¶11.) A reality specialist for the DLA neither buys nor sells property because the DLA does not own any property. (Id. ¶¶17-18.) The DLA is a record keeping organization for the real property of the tenants at DLA depots. (Id.) The reality specialist deals with building and category codes and facility numbers, not buying or selling property. (Id.) As such, possessing a real estate license was not helpful for the position. (Id. ¶¶15-16.) Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 2 of 13 3 Mary Ellen Hotovcin, business manager for the DLA, who was 62 and not disabled, and Patricia Essig, reality specialist for the DLA, who was 62 and disabled (hearing and visual impairments), read the eleven applicants’ resumes and telephonically interviewed all of them, including McMullen. (Id. ¶¶25-27.) Hotovcin and Essig were required, pursuant to DLA policy, to conduct behavioral- based interviews. (Id. ¶¶21-24.) They asked each applicant the same four questions and scored their answers. (Id. ¶¶34, 39.) A lower score was better. (Id. ¶¶40.) Hotovcin and Essig discussed the interviewees and narrowed the pool of candidates down to two. (Id. ¶44.) McMullen received seven points in the first interview and was not referred for a second interview. (Id. ¶¶41, 47.) Four other candidates received seven points and none of them were referred for a second interview. (Id. ¶¶42, 47.) The individuals who advanced to the second interview received five and six points. (Id. ¶45.) These two individuals (Donmoyer and Boyd- Wilson) were personally interviewed by Hotovcin and Essig. (Id. ¶51.) Hotovcin and Essig believed Donmoyer should be selected for the reality specialist position due to his experience with the Enterprise Business System (EBS). (Id. ¶53.) EBS is the main computer system used by a reality specialist. (Id. ¶56.) Essig, who was a reality specialist, thought Donmoyer would be easier to train due to his EBS experience. (Id. ¶¶13, 59.) As such, they recommended that the Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 3 of 13 4 selecting official, Carson, select Donmoyer for the position. (Id. ¶¶63-64.) Because Carson trusted their recommendation, he selected Donmoyer for the reality specialist position. (Id. ¶¶67-69.) IV. Questions Presented I. Whether McMullen can establish a prima facie case of disability discrimination. II. Whether McMullen failed to rebut as pretextual the DLA=s legitimate, non- discriminatory reasons for not selecting him for the reality specialist position? V. Argument Summary judgment standard Summary judgment is appropriate “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). A fact is Amaterial@ if it Amight affect the outcome of the suit[;]@ an issue is Agenuine@ only Aif the evidence is such that a reasonable jury could return a verdict for the nonmoving party.@ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material facts exists, Athe evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.@ Id. at 255 (citations omitted). In opposing a motion for summary judgment, the non-moving party must “go beyond the pleadings and by [his] own affidavits, or by the >depositions, answers to Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 4 of 13 5 interrogatories and admissions on file,= [and] designate >specific facts showing that there is a genuine issue for trial.=@ Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-moving party's burden is not satisfied by raising "some metaphysical doubt as to the material facts," making conclusory or unsubstantiated allegations, or pointing to a mere Ascintilla of evidence.@ Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(citations omitted). I. MCMULLEN FAILED TO ESTABLISH A PRIMA FACIE CASE OF DISABILITY DISCRIMINATION BECAUSE THE UNDISPUTED RECORD IS DEVOID OF ANY CAUSAL CONNECTION BETWEEN MCMULLEN’S ALLEGED DISABILITY AND NOT BEING SELECTED FOR THE REALTY SPECIALIST POSITION. McMullen cannot establish a prima facie case of disability discrimination because the undisputed record fails to contain any evidence that McMullen was not selected for the reality specialist position because of his disability. In order to establish a prima facie case of disability discrimination under the Rehabilitation Act,2 McMullen must prove that: A(1) he is a disabled person within the meaning of the@ Rehabilitation Act; A(2) he is otherwise qualified to perform the essential 2 “The Rehabilitation Act provides that the standards of the [American with Disabilities Act (ADA)] are to be used in determining whether the Rehabilitation Act has been violated in the employment context.” Shultz v. Potter, 142 F. App’x 598, 600 n.2 (3d Cir. 2005)(citations omitted). Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 5 of 13 6 functions of the job, with or without reasonable accommodation . . .; and (3) he has suffered an . . . adverse employment decision as a result of discrimination.@ Gaul v. Lucent Techs., Inc., 134 F.3d 576, 580 (3d Cir. 1998)(citations omitted). To meet the first element of a disability claim, McMullen must demonstrate that he meets the definition of an Aindividual with a disability[,]@ which is a person who has: (1) Aa physical or mental impairment that substantially limits” a major life activity; (2) “a record of such impairment;” or (3) been “regarded as having such an impairment.@3 42 U.S.C. '12102(1). Here, McMullen, an amputee, can demonstrate he has a physical impairment that substantially limits his ability to run, jump, and walk. (SMF ¶3.) Similarly, McMullen can show he was qualified to perform the essential functions of the reality specialist position because he received an interview for the position. (Id. ¶¶11, 27.) McMullen cannot, however, demonstrate that his disability had anything to do with him not being selected for the reality specialist position. Hotovcin and Essig conducted the first interview by telephone. (Id. ¶27.) There is no evidence that either Hotovcin and Essig were aware that McMullen had a portion of his leg amputated. (Id. ¶¶48-49, 71-75.) Also, there is no evidence that either of them 3 McMullen has neither alleged nor exhausted a record of disability or perceived disability claim. (Doc. 1.) Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 6 of 13 7 made a disability related remark in connection with the decision not to select McMullen. (Id. ¶¶77-78.) McMullen has no evidence, besides his mere assertions, that his disability was a factor in him not being selected for the reality specialist position. As such, McMullen cannot establish a prima facie disability claim. II. THE DLA HAS ARTICULATED LEGITIMATE, NON- DISCRIMINATORY REASONS FOR NOT SELECTING MCMULLEN FOR THE REALITY SPECIALIST POSITION, WHICH MCMULLEN CANNOT REBUT AS PRETEXTUAL. The DLA does not dispute that McMullen can demonstrate a prima facie age discrimination claim.4 Additionally, even if this Court finds that McMullen can establish a prima facie case of disability discrimination, which the DLA disputes, both discrimination claims fail because the DLA can articulate legitimate, non- discriminatory reasons for not selecting him for the reality specialist position. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If the DLA meets its burden of production, to avoid summary judgment, McMullen must prove that 4 In an ADEA suit, McMullen must demonstrate (1) he was at least forty years old, (2) “qualified for the position at issue[,]” (3) “suffered an adverse employment action[,]” and (4) “was replaced by a sufficiently younger person, raising an inference of age discrimination.” Anderson v. Consolidated Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002). McMullen can state a prima facie age discrimination claim because (1) he was at least 40 years old when he was not selected for the position (SMF ¶2), (2) he was qualified for the position (id. ¶11), (3) he was not selected for the position, (id. ¶69) and (3) the candidate, William Donmoyer, was 44 years old when he was selected for the position and McMullen was 60 years old. Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 7 of 13 8 the DLA articulated reasons are a pretext for illegal discrimination. Id. at 804-05. In this case, McMullen cannot demonstrate that the DLA=s legitimate, non- discriminatory reasons for not selecting him for the reality specialist position were a pretext for illegal discrimination. Hotovcin and Essig believed that Donmoyer should be selected for the reality specialist position because he had desired experience with EBS. (SMF ¶53.) Under duties in the JOA, it states the reality specialist must update data in EBS. (Id. ¶9.) EBS was the main program used by the reality specialist. (Id. ¶¶56-57.) Essig, a reality specialist for DLA, felt Donmoyer could be quickly trained. (Id. ¶59.) Donmoyer testified that EBS is a difficult system to learn, it took him two years to become proficient in EBS, and he was proficient by the time he applied for the reality specialist position. (Id. ¶¶91-93.) In comparison, McMullen had no EBS experience. (Id. ¶¶60-61.) In fact, he had no understanding of what a reality specialist does at the DLA. (Id. ¶¶19-20.) All of the eleven candidates interviewed by Hotovcin and Essig were asked the same four questions. (Id. ¶34.) Four candidates with a score of seven from the first interview, McMullen included, were not referred for a second interview. (Id. ¶¶41-42, 47.) The two candidates who were interviewed for a second time, Donmoyer and Wilson-Boyd, received five and six points, respectively, from the Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 8 of 13 9 first interview. (Id. ¶45.) As such, the DLA has offered a legitimate, non- discriminatory explanation for its selection of Donmoyer. To defeat summary judgment where the DLA has offered legitimate, nondiscriminatory reasons for its employment decisions, McMullen must “either (i) discredit[] the proffered reasons, either circumstantially or directly, or (ii) adduc[e] evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). To show pretext McMullen “cannot simply show that the [DLA’s] decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.” Id. at 765 (citations omitted). Rather, McMullen “must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them ‘unworthy of credence.’” Id. (quoting Ezold v. Wolf, Block, Schorr, & Solis-Cohen, 983 F.2d 509, 531 (3d Cir. 1992)). Thus, McMullen must show that the DLA’s decision was “so plainly wrong that it [could] not have been the [DLA’s] real reason.” Keller v. Oriz Cred. Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997). Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 9 of 13 10 McMullen cannot meet his burden of demonstrating pretext. McMullen claims that because he had a real estate license, he is better qualified than Donmoyer. The undisputed record is devoid of any evidence to support McMullen’s claim. To be sure, Essig, the reality specialist for the DLA, testified that she never bought or sold property because the DLA does not own any property. (SMF ¶¶15-16.) Essig further testified that she did not believe a real estate experience in the private sector would be helpful in fulfilling the duties of a reality specialist. (Id. ¶16.) Further, the record reveals that real property in the DLA is about buildings, category codes, and facility numbers. (Id. ¶¶17-18.) As such, possessing a real estate license was not helpful for the position. Furthermore, McMullen admitted he had no EBS experience. (Id. ¶¶60-61.) McMullen also argues the selection process for the reality specialist position demonstrates pretext by violating the merit selection system. Again, McMullen’s argument is not supported by the evidence. The DLA required BBI; thus, Hotovcin and Essig had to utilize BBI to select the reality specialist position. (Id. ¶¶21-24.) All the applicants were asked the same questions, which minimizes bias and treats the candidates more fairly. (Id. ¶34.) As such, McMullen cannot show pretext by the DLA utilizing the BBI. Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 10 of 13 11 Moreover, there is no evidence that a DLA management official made an age or disability related remark in connection with the decision to recommend or hire the reality specialist position. (Id. ¶¶77-78.) Furthermore, the DLA hired McMullen when he was over 40. (Id. ¶2.) McMullen has no evidence, besides his mere speculation, that his disability and age were factors in the DLA’s decision to not select him for the reality specialist position. Indeed, when McMullen was asked why he believed age was a factor in him not being selected for the reality specialist position, he testified: Well, at any time, at any place, anybody on that depot can bring you up on the employee database. And they have access to your date of birth, your date of hire, where you work, any of that information. I mean, you don't have to tell them. If they want to know, they can find out. (Id. ¶79.) With regard to disability, he speculated, due to his disability, he never got interviews. (Id. ¶85.) While there is no evidence that Hotovcin, Essig, or Carson knew of McMullen’s age or disability (id. ¶¶71-72, 74-83), even assuming they did, the mere knowledge of age or disability is insufficient alone to demonstrate pretext. Christopher v. Adam’s Mark Hotels, 137 F.3d 1089, 1073 (8th Cir. 1998)(noting in the context of a ADA claim, “[m]ere knowledge of a disability cannot be sufficient to show pretext; otherwise, summary judgment for an employer would be appropriate only in cases where the employer is completely unaware of the plaintiff’s disability.”); see Klimek v. United Steelworkers Local, 618 F. App’x 77, 80 (3d Cir. Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 11 of 13 12 2015)(relying upon Christopher case, finding mere knowledge of a disability is insufficient to show pretext). In sum, the DLA has non-discriminatory evidence to support its decision to select Donmoyer. There is simply no evidence that Donmoyer’s EBS experience was a fake or unworthy reason to select him for the reality specialist position. Therefore, McMullen cannot defeat summary judgment on his age and disability discrimination claims. VI. Conclusion For the above-stated reasons, the DLA requests this Court to grant its motion for summary judgment and enter judgment in its favor. Respectfully submitted, BRUCE D. BRANDLER United States Attorney s/ Melissa A. Swauger MELISSA A. SWAUGER Assistant United States Attorney PA 82382 228 Walnut Street, Suite 220 Harrisburg, PA 17108-1754 Phone: (717) 221-4482 Facsimile: (717) 221-4493 Date: April 21, 2017 Melissa.Swauger@usdoj.gov Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 12 of 13 13 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA Gary McMullen : No. 1:15-cv-02385 : : (Caldwell, J.) vs. : : Ash Carter, Secretary of : Defense : Filed Electronically CERTIFICATE OF SERVICE The undersigned hereby certifies that he is an employee in the Office of the United States Attorney for the Middle District of Pennsylvania and is a person of such age and discretion as to be competent to serve papers. That on April 21, 2017 she caused to be served a copy of the attached DEFENDANT’S BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT by the Court’s ECF filing system: Addressee: Keith E. Kendall, Esquire 20 North Hanover Street Suite 201 Carlisle, PA 17013 Attorney for Plaintiff s/ Cindy J. Long Cindy J. Long, Legal Assistant Case 1:15-cv-02385-WWC Document 23 Filed 04/21/17 Page 13 of 13