Murphy v. Carter

MOTION for Partial Summary Judgment

D. Me.August 10, 2016

1 UNITED STATES DISTRICT COURT DISTRICT OF MAINE MICHAEL S. MURPHY ) ) Plaintiff, ) ) v. ) Case No. 2:14-cv-00400-JAW ) ASHTON CARTER, ) Secretary of Defense ) ) Defendant. ) DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT THOMAS E. DELAHANTY II United States Attorney Andrew K. Lizotte Assistant U.S. Attorney 100 Middle Street East Tower, 6th Floor Portland, ME 04101 (207) 771-3246 Andrew.Lizotte@usdoj.gov Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 1 of 23 PageID #: 342 1 Defendant Ashton Carter, Secretary of Defense, by and through undersigned counsel, hereby moves for partial summary judgment pursuant to Federal Rule of Civil Procedure 56(a) and Local Rule 56(a) that: (i) Plaintiff’s lawsuit is limited to events which occurred 45 days prior to his contacting an EEO counselor in August 2013; (ii) Count I, concerning Defendant’s alleged discriminatory denial of promotions and unequal pay to Plaintiff on the basis of his deafness, should be dismissed in its entirety; and (iii) Count III, concerning Defendant’s alleged discriminatory denial of promotions and unequal pay to Plaintiff on the basis of his age, should be dismissed in its entirety. I. PRELIMINARY STATEMENT Michael S. Murphy, the Plaintiff in this action, is time-barred from seeking relief on the basis of the thirty-plus years of disability and age discrimination he alleges occurred at the hands of the Department of the Navy (“Navy”) and, more recently, the Defense Logistics Agency (“DLA”) throughout the entirety of his employment at the Portsmouth Naval Shipyard in Kittery, Maine (the “Shipyard”). His claims are instead cabined by the 45-day period running back from when he contacted an EEO counselor on August 23, 2013. All events occurring before July 9, 2013, are thus foreclosed. These well-settled rules of timing and administrative exhaustion are a strictly construed condition to the United States’ waiver of sovereign immunity, and limit Plaintiff’s claims accordingly. Contrary to Plaintiff’s suggestions throughout this action, the continuing violation doctrine does not apply to extend his claims. Applying these principles of timing and administrative exhaustion to Plaintiff’s case constrains him to proceeding solely on the basis of “[t]he most recent example” of impermissible age and disability discrimination he has allegedly “suffered from for the past 30 years”—the DLA’s failure to promote him for General Supply Specialist positions in August 2013—because Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 2 of 23 PageID #: 343 2 that is the only allegedly discriminatory act occurring within the 45-day period prior to August 23, 2013. See Second Am. Compl. (“2d Am. Compl.”) ¶¶ 27, 30, ECF No. 56, May 25, 2016. Because neither Plaintiff’s deafness nor age were considered (or even known) by the DLA Human Resources Specialist who failed to select him to interview for those positions, summary judgment in Defendant’s favor on Count I (the Rehabilitation Act) and Count III (the Age Discrimination in Employment Act, or “ADEA”) should be granted. As such, only Plaintiff’s failure to accommodate claim (Count II) will remain for trial, albeit in a form appropriately limited to exclude events predating July 9, 2013. II. STATEMENT OF FACTS A. Plaintiff is a Disabled, 72-Year-Old Deaf Man Who Has Worked at the Portsmouth Naval Shipyard for More Than 30 Years 1. Plaintiff is an individual with a disability because he is deaf Plaintiff has worked at the Shipyard for more than 30 years, and is now 72-years-old. See generally Defendant’s Statement of Undisputed Material Facts (“SUMF”) ¶¶ 7-14; see also id. ¶ 1 (“Plaintiff was born on October 30, 1943”). He is deaf and communicates in American Sign Language as his first language. SUMF ¶ 2. There is no dispute that Plaintiff is an individual with a disability due to his deafness. Id. ¶ 6. Plaintiff also reads and writes in English, though on a basis he describes as “quite limited.” Id. ¶ 3. He nonetheless composes and reads very basic emails, cell phone text messages, and other correspondence written in English without the aid of an American Sign Language interpreter. Id. ¶ 4. In his employment at the Shipyard, Plaintiff uses videophones, some limited texting, American Sign Language interpreter services, and other accommodations provided by the DLA to aid his communication with English speakers. Id. ¶ 5. Additionally, Plaintiff has weekly meetings with his supervisors interpreted by American Sign Language Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 3 of 23 PageID #: 344 3 interpreters, and can separately request American Sign Language interpreters from his supervisors. Id. 2. Plaintiff is employed by the Navy from 1979 until 2010, when he is transferred to the DLA Since 1979, Plaintiff has worked at the Shipyard in a civilian capacity as a Materials Handler. SUMF ¶ 7; see also id. ¶¶ 7-14. He has not, however, been employed by the same Department of Defense agency throughout his Shipyard tenure. Id. Plaintiff began his employment at the Shipyard with the Navy. Id. ¶ 7. He was a Navy employee from 1979 until June 5, 2010. Id. ¶¶ 7, 10-11. On June 6, 2010, Plaintiff’s employment was transferred to the DLA pursuant to the Department of Defense’s base realignment and closure program. Id. ¶¶ 10- 11. Since June 6, 2010, Plaintiff has been employed by the DLA as a Materials Handler, WG-6, Step 5, at the Shipyard. Id. ¶ 12. The DLA is distinct from the Navy, which is a separate agency component of the Department of Defense headed by Secretary of the Navy Ray Mabus. Id. ¶ 13. The DLA is a combat support agency of the Department of Defense, with the Secretary of Defense being ultimately responsible for its oversight. Id. ¶¶ 13-14. The Equal Employment Opportunity office (“EEO”) which services DLA employees who work at the Shipyard, such as Plaintiff, is located in Columbus, Ohio, whereas Navy employees at the Shipyard are serviced by an EEO office located on-site. Id. ¶¶ 15-16. Following his transfer to the DLA in 2010, Plaintiff participated in a video conference with a DLA EEO Disability Program Manager based in Columbus, Ohio. Id. ¶ 17. The video conference was translated by an American Sign Language interpreter. Id. Plaintiff was informed during the video conference that the DLA EEO office located in Ohio would provide EEO Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 4 of 23 PageID #: 345 4 services to him as a DLA employee, and that if he had any concerns or issues with the DLA, that EEO contacts in the Ohio office would provide him with assistance. Id. ¶ 18. 3. Since his transfer to the DLA in 2010, Plaintiff has earned the same or a greater salary than his fellow DLA Materials Handlers Upon his transfer to the DLA in 2010, Plaintiff earned an hourly salary of $21.25 as a Materials Handler, WG-6, Step 5, which was equal to or greater than that paid to his fellow Materials Handler colleagues working for the DLA at the Shipyard. SUMF ¶¶ 19-20. From 2010 through 2015, his hourly salary has been equal to or greater than that paid to his fellow Materials Handler colleagues. Id. ¶¶ 20-25. Plaintiff’s younger Materials Handler co-workers are paid less than he is. Id. ¶ 26. B. Plaintiff is not Selected to Interview for Promotion to DLA General Supply Specialist Positions at the GS-07 and GS-09 Levels in August 2013 1. The USA Staffing / USA Jobs on-line application process for applications for promotions To be selected for a DLA promotion Plaintiff was required to apply for open positions. SUMF ¶ 31. He could only receive a promotion in connection with DLA jobs to which he applied electronically. Id. ¶ 32. In 2013, DLA employees applied to open DLA job announcements via a web-based system called USA Staffing, which interfaced with the USA Jobs federal government employment website. Id. ¶ 34. USA Staffing is a talent acquisition system used by the DLA internally for applicants who already hold federal government employment, whereas USA Jobs is the public site for all non-federal employees to apply for DLA positions. Id. ¶ 33. USA Staffing connects to the Office of Personnel Management’s USA Jobs website. Id. ¶¶ 33-34. DLA employees applying to open DLA positions must submit answers electronically in response to a questionnaire on the USA Staffing / USA Jobs system. Id. ¶ 35. Based on their Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 5 of 23 PageID #: 346 5 answers, a numerical ranking list is then generated by the USA Staffing / USA Jobs system and reviewed to determine which DLA job applicants are qualified for the positions to which they apply and are be certified as candidates to be interviewed. Id. 2. Plaintiff applies for GS-07 and GS-09 General Supply Specialist positions in August 2013 using the USA Staffing / USA Jobs system Plaintiff’s application in August 2013 for the position of General Supply Specialist with openings at both the GS-07 and GS-09 levels is the most recent example of his attempts at promotion at issue here, not to mention the only non-hiring alleged specifically in the Second Amended Complaint and formal EEO complaint. SUMF ¶¶ 39-40; see also 2d Am. Compl.1 Plaintiff applied on August 16, 2013, by electronically filling out and submitting answers to a questionnaire on the USA Staffing / USA Jobs system. Id. ¶¶ 41-42. The questionnaire contained a Question Number 6, which gave Plaintiff the following option: 6. I am applying for this position to be considered as a: Person with Disabilities. You must submit a certification statement from a Vocational Rehabilitation Service (state or private), Department of Veterans Affairs, a licensed medical professional (e.g., a Physician or other medical professional duly certified by a State, the District of Columbia, or a U.S. territory, to practice medicine or provide disability benefits). A. Yes B. No Id. ¶ 43. Question Number 6 of the General Supply Specialist questionnaire was the only solicitation of or reference to information regarding disabilities. Id. ¶ 44. The questionnaire also did not seek or make any reference to information regarding applicants’ ages. Id. ¶ 45. 1 The first time in 2013 that Plaintiff submitted an application for promotion to a higher paying DLA position was on May 4, for Distribution Facilities Specialist; he was not selected to interview on May 9. SUMF ¶¶ 36-37. This non-selection falls well before the applicable cut-off date of July 9, 2013, as argued further below. See infra Section III.A.2. The General Supply Specialist at both the GS-07 and GS-09 levels was the next DLA position to which he submitted an application, on August 16, 2013. Id. ¶ 38. Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 6 of 23 PageID #: 347 6 The USA Staffing / USA Jobs system used the applicants’ answers to the General Supply Specialist questionnaire to automatically calculate a score of between 100 and 70. Id. ¶ 46. On the basis of each applicant’s score a ranking list of the applicants was then automatically generated, from the highest score to the lowest score. Id. ¶ 47. A DLA Human Resources Specialist named Lori Kendrick (née Smith) was the DLA contact for the General Supply Specialist job announcement at both the GS-07 and GS-09 levels. Id. ¶ 48. 3. Plaintiff’s application for the GS-07 General Supply Specialist position is not reviewed Ms. Kendrick was the only DLA employee responsible for reviewing the ranking list for General Supply Specialist at the GS-07 grade and making the determination regarding which applicants’ applications should be reviewed and elevated for interviews. SUMF ¶ 49. She reviewed the ranking list, made handwritten notations, and initialed the document. Id. ¶ 51. The numerical cut-off score Ms. Kendrick used to determine which applicants to refer to have their resumes and applications reviewed for an interview for the General Supply Specialist position at the GS-07 grade was a score of 88 out of 100, which she indicated by drawing a line on the ranking list separating applicants who scored an 88 from those who scored an 87. Id. ¶¶ 52-53. Plaintiff’s answers automatically generated a score of 85, which was below the cut-off score of 88. Id. ¶ 55. Ms. Kendrick therefore did not review Plaintiff’s application materials or consider him for referral for an interview. Id. ¶ 56. The only information Ms. Kendrick possessed and reviewed concerning Plaintiff was that which appeared on the ranking list. Id. ¶ 57. This information comprised the information and answers that Plaintiff himself submitted via the questionnaire, as well as his cumulative score based on those answers. Id. ¶ 50. From the face of the ranking list, the only details Ms. Kendrick knew about Plaintiff were his name, Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 7 of 23 PageID #: 348 7 address, telephone number, email address, the last four digits of his social security number, that he was a candidate for competitive promotion, and that he had scored an 85. Id. ¶ 57. Significantly, a designation of “N-PWD” was not present beside Plaintiff’s ranking information. Id. ¶ 58. If Plaintiff had answered “A. Yes” to Question Number 6 of the General Supply Specialist questionnaire indicating that he had applied as a Person with Disabilities, the ranking list would have indicated a designation of “N-PWD” beside his name. Id. ¶ 59. However, Plaintiff answered “B. No” to Question Number 6 of the General Supply Specialist questionnaire, indicating that he was not a Person with Disabilities. Id. ¶ 61.2 Ms. Kendrick did not review any information regarding whether Plaintiff had a disability when making the determination of which candidates would be selected for interviews for the General Supply Specialist positions. Id. ¶ 63. She did not know whether Plaintiff had a disability,3 and she did not know Plaintiff’s age. Id. ¶ 64. She did not review Plaintiff’s resume, nor did she review any other materials submitted by Mr. Murphy in connection with his application. Id. ¶ 63. Besides the information concerning Plaintiff’s name, address, telephone number, email address, the last four digits of his social security number, that he was a competitive promotion candidate, and that he scored an 85, Ms. Kendrick did not know any other details concerning Plaintiff. Id. ¶ 62. Ms. Kendrick wrote “IRAT” beside Plaintiff’s ranking information for the General Supply Specialist position at the GS-07 grade to show that he had scored an ineligible rating due to his cut-off score. Id. ¶ 65. Plaintiff’s IRAT rating was provided to him on August 22, 2013, 2 Even with a score below the 88 cut-off, had he self-identified as a Person with Disabilities, Plaintiff’s application for General Supply Specialist at the GS-07 grade would have received additional review if his ranking list indicated that he was N-PWD. Id. ¶ 60. His is resume would then have been reviewed and his application would have been forwarded to the selecting official. Id. 3 Rather, by the absence of a N-PWD designation, Ms. Kendrick would know that Plaintiff had not identified himself on the application as disabled. Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 8 of 23 PageID #: 349 8 by email alert from the USA Staffing / USA Jobs system, stating in part, “We have not reviewed your qualifications for this position because there are higher preference veterans and/or higher ranking candidates that must first be certified and considered.” Id. ¶ 66. 4. Plaintiff’s application for the GS-9 General Supply Specialist position is not reviewed Plaintiff’s name did not appear on the ranking list for the General Supply Specialist position at the GS-09 grade, so Ms. Kendrick also did not review any of Plaintiff’s information with respect to his application for that grade. SUMF ¶¶ 70-71. The General Supply Specialist questionnaire contained a question regarding applicants’ minimum qualifications, which asked applicants to select an answer which best described their highest level of education and/or experience they possessed for the General Supply Specialist position. Id. ¶ 67. Plaintiff answered that he possessed minimum qualifications at the GS-07 level. Id. ¶ 68. He therefore automatically disqualified himself for the General Supply Specialist at the GS-09 grade, because he answered that he had experience equivalent to a GS-07. Id. ¶ 69. Plaintiff was notified on August 22, 2013, by email alert from the USA Staffing / USA Jobs system that he rated “ID” for the General Supply Specialist GS-09 grade, stating in part, “You do not meet the minimum education and/or experience requirements for this specialty and grade.” Id. ¶ 72. 5. Plaintiff is informed on August 22, 2013, that he is not selected to interview for the General Supply Specialist positions Plaintiff was informed via email on August 22, 2013, that he was not selected to interview for the General Supply Specialist position at either the GS-07 or GS-09 level. SUMF ¶ 73; see also id. ¶¶ 66, 72. The individuals ultimately selected for the General Supply Specialist positions at the GS-07 or GS-09 levels were not disabled and were younger than Plaintiff. Id. ¶¶ 74. Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 9 of 23 PageID #: 350 9 C. Plaintiff’s Discrimination Claims Administratively and Before this Court 1. Plaintiff contacts an EEO Counselor the day after learning he is not selected to interview for the General Supply Specialist positions A day after learning that he was not hired for either General Supply Specialist vacancy, on August 23, 2013, Plaintiff went to see a Navy EEO Specialist, Ava Drost, at the Shipyard to make a complaint about not being hired for the General Supply Specialist positions and his alleged inability to receive a promotion due to discrimination on the basis of age and disability. SUMF ¶¶ 75, 79.4 For purposes of summary judgment, although this contact did not occur with a DLA EEO official based in Ohio, Defendant assumes that Plaintiff’s contact with the Navy EEO Specialist on August 23, 2013, nonetheless constituted “contact with a Counselor” regarding the matters “alleged to be discriminatory” pursuant to 29 C.F.R. § 1614.105(a)(1). 2. Plaintiff files a Formal Complaint of Discrimination with the EEO office of the DLA Plaintiff filed his formal EEO complaint of discrimination with the DLA EEO office on February 7, 2014. SUMF ¶ 80. The EEO complaint indicated that Plaintiff had discussed his complaint with the Navy EEO Specialist Ms. Drost, and had first asked to see an EEO Counselor in August 2013. SUMF ¶ 81. The EEO complaint detailed the alleged discrimination and adverse employment actions to which Plaintiff believed he had been subjected. Id. ¶ 82. Specifically, besides his failure to accommodate claim, Plaintiff asserted “Loss of Opportunity/Failure to Promote” and “Unequal Pay” as the illegal employment discrimination adversely affecting his employment. Id. ¶ 83. His asserted “Loss of Opportunity/Failure to Promote,” was that, despite his numerous efforts to obtain a promotion over the years, he had 4 Plaintiff arrived at the Navy EEO office as a walk-in on August 23, 2013, without an appointment or notifying the Navy EEO beforehand, and therefore an American Sign Language interpreter was not present. Id. ¶ 76. Although an American Sign Language interpreter was not present, Plaintiff brought with him printed notifications that he had not been selected for the DLA job opening. Id. ¶ 77. In a handwritten note, Ms. Drost indicated to Plaintiff that the Navy EEO office did not service him as a DLA employee regarding his non-selection, and provided Plaintiff with a print-out of the EEO DLA contacts in Columbus, Ohio, that would. Id. ¶ 78. Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 10 of 23 PageID #: 351 10 never been given one, with the most recent (and only) example provided being his application for the positions of General Supply Specialist at the GS-07 and GS-09 levels in August 2013. Id. ¶ 84. Regarding his asserted “Unequal Pay,” Plaintiff stated that “[f]or years and even now, I have been doing the same work that co-workers do and they are paid more.” Id. ¶ 85. 3. The instant action purports to assert claims against the DLA extending back over Plaintiff’s prior 30-plus years at the Shipyard The instant action was filed by Plaintiff on October 10, 2014, and he amended his pleading on February 25, 2015. See Compl., ECF No. 1, Oct. 10, 2014; First Am. Compl., ECF No. 15, Feb. 25, 2015; 2d Am. Compl. ¶ 8. The Amended Complaint was filed by Plaintiff to “clarif[y] that his claims are against the DLA, not the Navy.” SUMF ¶ 30. The Second Amended Complaint was filed on May 25, 2016. ECF No. 56, May 25, 2016. Plaintiff nonetheless maintains that he seeks relief on the basis of having never been promoted or given any other opportunities over the past three decades he has worked at the Portsmouth Naval Shipyard. Id. ¶¶ 27-29. Although he filed the instant lawsuit to allege that he was discriminated against on the basis of his deafness and age because he was not promoted, Plaintiff views the course of his more than 30 years of employment with both the Navy and DLA at the Shipyard as being at issue. Id. ¶¶ 27-28. III. ARGUMENT Partial summary judgment should be granted in Defendant’s favor here because “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits. . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Sands v. Ridefilm Corp., 212 F.3d 657, 660-61 (1st Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 11 of 23 PageID #: 352 11 Cir. 2000); Fed. R. Civ. P. 56(a)-(c).5 Plaintiff, as the non-movant bearing the ultimate burden of proof, must present definite and competent evidence to rebut Defendant’s motion. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986); see generally Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If Plaintiff, as the nonmoving party, fails to make such a showing then summary judgment should be granted. Celotex, 477 U.S. at 322. On the basis of the factual record and arguments below, Defendant submits that he is entitled to judgment as a matter of law that the temporal scope of Plaintiff’s action is limited to events which occurred after July 9, 2013, which is the date 45 days prior to when Plaintiff contacted an EEO counselor on August 23, 2013. Given that he is barred from recovering on the basis of events predating July 9, 2013, summary judgment should further be granted for Defendant on Count I of Plaintiff’s Second Amended Complaint, encompassing his disability discrimination claim brought pursuant to Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, and Count III, encompassing his age discrimination claim brought pursuant to the federal sector provision of ADEA, 29 U.S.C. § 633a. Only Plaintiff’s failure to accommodate claim, Count II, will remain. A. Events Occurring More than 45 Days Before Plaintiff Initiated the EEO Process on August 23, 2013, are Time-Barred 1. Plaintiff’s claims are subject to the timing and administrative exhaustion requirements of the Rehabilitation Act and ADEA The instant action seeks relief for alleged disability discrimination pursuant to Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, and age discrimination pursuant to the ADEA’s 5 Partial summary judgment may be requested to dispose of less than the whole action with respect to discrete claims or parts of a claim, as Defendant does here. See Fed. R. Civ. P. 56(a) advisory committee note (2010 amendment); see generally Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 606 (7th Cir. 2015) (“A request for partial summary judgment can serve a useful brush-clearing function even if it does not obviate the need for a trial”); Rotorex Co., Inc. v. Kingsbury Corp., 42 F. Supp. 2d 563, 570-71 (D. Md. 2005) (partial summary judgment helpful in resolving before trial “matters wherein there is no genuine dispute.”); McDonnell c. Cardiothoracic & Vascular Surgical Assocs., Inc., 03-cv-79, 2004 WL 1234138, at *1 (S.D. Ohio May 27, 2004) (partial summary judgment motions are “a useful pretrial tool”). Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 12 of 23 PageID #: 353 12 federal sector provision found at 29 U.S.C. § 633a(b). See 2d Am. Compl. ¶¶ 1, 6, 47-75 & Relief Requested. Plaintiff’s claims are therefore subject to the mandatory timing and administrative exhaustion requirements promulgated by the Equal Employment Opportunity Commission (“EEOC”). The Rehabilitation Act does not establish its own procedures for claims of discrimination brought under Section 501, 29 U.S.C. § 791, but instead expressly incorporates the procedures set forth in Title VII, which authorizes the EEOC to issue rules and regulations covering administrative remedies and exhaustion requirements. See generally Roman-Martinez v. Runyon, 100 F.3d 213, 216 (1st Cir. 1996). One such rule is that the employee contact his agency’s EEO counselor “within 45 days of the date of the matter alleged to be discriminatory” as required pursuant to 29 C.F.R. § 1614.105(a)(1). In the absence of contact with an EEO counselor within 45 days a plaintiff fails to exhaust his administrative remedies. Velazquez- Rivera v. Danzig, 234 F.3d 790, 794 (1st Cir. 2000); see also Randall v. Potter, 366 F. Supp. 2d 104, 113 (D. Me. 2005) (“To exhaust [] administrative remedies, a plaintiff must contact an EEOC counselor within forty-five days of the allegedly discriminatory incident” pursuant to 29 C.F.R. § 1614.105(a)(1)). As the First Circuit has observed, “[t]his exhaustion requirement is no small matter; it ‘is a condition to the waiver of sovereign immunity’ and thus ‘must be strictly construed.’” Vazquez-Rivera v. Figueroa, 759 F.3d 44, 47-48 (1st Cir. 2014) (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 94 (1990)). The 45-day administrative exhaustion requirements governing Rehabilitation Act claims likewise apply to Plaintiff’s federal sector ADEA claim brought here pursuant to 29 U.S.C. § 633a(b).6 See, e.g., Smithers v. Wynne, 319 Fed. App’x 755, 757 (11th Cir. 2008) (“under Title 6 “Section 15 of the ADEA, 29 U.S.C. § 633a . . . prohibits age discrimination in federal employment.” See Lehman v. Nakshian, 453 U.S. 156, 162 (1981). Federal employees have the option of electing either to file an Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 13 of 23 PageID #: 354 13 VII and the ADEA, federal employees are required to initiate administrative review of any alleged discriminatory or retaliatory conduct with the appropriate agency within 45 days of the alleged discriminatory act.”). By “[h]aving chosen first to pursue an administrative remedy under the ADEA,” Plaintiff “was required to . . . . initiate [] contact with a counselor within forty-five days of the alleged discriminatory act [pursuant to] 29 C.F.R. § 1614.105(a).” Kersey v. Widnall, 97-cv-10464, 1998 WL 151232, at * (D. Mass. Mar. 12, 1998); see also Hernandez- Stella v. Shinseki, 978 F. Supp. 2d 105, 115 (D.P.R. 2013) (“because Plaintiff decided to pursue all of [his] claims administratively (including those under ADEA) . . . [he] was also required to exhaust administrative remedies as to [the] ADEA charges.”); Murphy v. Potter, 07-cv-145-PB, 2008 WL 510147, at *5 (D.N.H. Feb. 25, 2008) (where “the ADEA claims [are] first raised in an administrative proceeding” the EEO administrative rules of Title VII apply). 2. Because Plaintiff contacted an EEO counselor on August 23, 2013, he is time-barred from seeking relief on the basis of events occurring before July 9, 2013 Plaintiff is incorrect that he timely and fully exhausted the required administrative remedies as to claims spanning his more than 30 years of employment at the Shipyard with the Navy, as well as with the DLA more recently. See 2d Am. Compl. ¶¶ 8-13; SUMF ¶¶ 27-30. To the contrary, no events which occurred prior to July 9, 2013, can provide him a basis for relief. Plaintiff initiated contact with an EEO counselor on August 23, 2016, to make a complaint about administrative complaint against the agency alleged to have acted discriminatorily pursuant to 29 U.S.C. § 633a(b)—as Plaintiff in this case did, see 2d Am. Compl. ¶¶ 8-13—or bypassing the administrative process and filing an ADEA claim directly with the district court after giving a 30-day notice of intent to sue to the EEOC within 180 days of the alleged unlawful practice pursuant to 29 U.S.C. § 633a(d). See generally Rossiter v. Potter, 357 F.3d 26, 29 (1st Cir. 2004) (discussing 29 U.S.C. § 633a(b)-(d) in connection with EEOC administrative process versus ADEA federal sector bypass actions). Where, as here, “the employee goes through the administrative process, he must notify the EEO counselor within forty-five days of the alleged discriminatory conduct [as required by] 29 C.F.R. § 1614.105(a)(1).” Whitman v. Mineta, 541 F.3d 929, 932 (9th Cir. 2008); see also Smith v. Potter, 400 Fed. App’x 806, 809-10 (5th Cir. 2010) (“Once an employee proceeds down the administrative route, he must completely exhaust his administrative remedies before commencing suit in federal court.”) (citations and quotations omitted); Bohac v. West, 85 F.3d 306, 309 (7th Cir. 1996) (same). Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 14 of 23 PageID #: 355 14 not being hired for the General Supply Specialist positions and his alleged inability to receive a promotion due to disability and discrimination. SUMF ¶¶ 75, 79; see also id. ¶¶ 80-83. By initiating contact with the EEO on August 23, the 45-day look back period pursuant to 29 C.F.R. § 1614.105(a)(1) established a cut-off date of July 9, 2013. A review of the 45 days running from Plaintiff’s August 23, 2013, EEO contact to the cut-off date of July 9, 2013, reveals that the only materially adverse employment action squarely at issue is his August 22, 2013, non-selection to interview for the General Supply Specialist positions. SUMF ¶¶ 36-38; see also id. ¶¶ 66, 72-73. As such, Plaintiff is foreclosed from asserting any “pattern of non-selection that [he] has suffered from for the past 30 years” as the basis for his claims. 2d Am. Compl. ¶ 30. He is instead limited to proceeding on the August 2013 General Supply Specialist non-selections comprising Counts I and III of this action.7 Plaintiff well understands this. That is why the only specific instance pleaded of his being denied promotions due to disability and age is “the most recent example of Plaintiff’s attempts at promotion to . . . General Supply Specialist” in August 2013. 2d Am. Compl. ¶¶ 27- 29. His non-selection to interview for the General Supply Specialist positions is likewise the lone example of “Loss of Opportunity/Failure to Promote” Plaintiff cites in his formal EEO complaint as constituting illegal employment discrimination adversely affecting his employment. SUMF ¶¶ 81-85. Moreover, had Plaintiff complied with the applicable exhaustion requirements, his claims would have been addressed and possibly resolved many years ago. See, e.g., Mason v. Donahoe, 11-cv-262-PS, 2014 WL 4388146, at *4 (N.D. Ind. Sept. 5, 2015) (granting Government’s 7 Plaintiff also superficially asserts an “Unequal Pay” claim administratively, contending that “[f]or years and even now, I have been doing the same work that co-workers do and they are paid more” (SUMF ¶ 85), and repeats the same in the instant federal suit (2d Am. Compl. ¶ 22). This charge is easily disproven on the undisputed facts, as discussed below. See infra Section III.B.2. Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 15 of 23 PageID #: 356 15 summary judgment motion for failure to exhaust administrative remedies).8 As it now stands, however, Plaintiff’s decades-spanning action flouts the underlying rationale of administrative exhaustion, which is to “protect employers from the burden of defending claims arising from employment decisions that are long past.” Del. State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980). That policy is particularly apt here, given that Plaintiff purports to seek relief on the basis of actions spanning most of his working life. Indeed, as Plaintiff himself has testified, many of his former supervisors have either retired or died. SUMF ¶¶ 8-9. The administrative exhaustion schemes imposed under both the Rehabilitation Act and ADEA therefore do not permit Plaintiff to work 30 years with the Navy, join the DLA for another three, initiate EEO proceedings against the DLA based on allegations of discrimination on the part of the DLA, and then sue in federal court on the basis of events spanning virtually his entire career as a federal employee with both the Navy and the DLA. His “unexcused failure to exhaust administrative remedies effectively bars the courthouse door” as to all but the 45-day period tracing back from when he contacted an EEO counselor on August 23, 2013. Jorge v. Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005). 3. The continuing violation doctrine in inapplicable to Plaintiff’s claims Any argument by Plaintiff that the continuing violation doctrine applies to extend his lawsuit to cover events preceding July 9, 2013, would be groundless under Supreme Court and First Circuit precedent. The “doctrine does not apply to ‘discrete acts’ of alleged discrimination that occur on a ‘particular day.’” Ayala v. Shinseki, 780 F.3d 52, 57 (1st Cir. 2015) (citing Tobin 8 See, e.g., Best v. Duane Reade Drugs, 14-cv-2648, 2014 WL 5810105, at *3 (S.D.N.Y. Nov. 6, 2014) (discussing why ADEA and Title VII litigants must exhaust available administrative remedies in a timely fashion as “a prerequisite to gaining access to the federal courts”) (citing cases); Koch v. Walter, 935 F. Supp. 2d 143, 151 (D.D.C. 2013) (purpose of the administrative process is to afford “the employing office an opportunity to explore and possibly resolve the employee’s claims informally.”) (citing cases)); Zhu v. Fed. Hous. Fin. Bd., 389 F. Supp. 2d 1253, 1276 (D. Kan. 2005) (administrative exhaustion “serves the dual purposes of ensuring the administrative agency has the opportunity to investigate and conciliate the claims and of providing notice to the charged party of the claims against it.”). Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 16 of 23 PageID #: 357 16 v. Liberty Mut. Ins. Co., 553 F.3d 121, 130 (1st Cir. 2009)). The failure to promote claim asserted by Plaintiff constitutes “[d]iscrete acts [that] are easy to identify” such that each is “a separate actionable ‘unlawful employment practice.’” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). Plaintiff’s age and disability claims are therefore limited “to cover discrete acts that ‘occurred’ within the appropriate time period” of 45 days. Id.; see also Randall v. Potter, 366 F. Supp. 2d 104, 113-14 (D. Me. 2005) (granting Government’s motion for summary judgment on “claims for discrete acts of alleged discrimination prior to [cut-off date]. . . since those discrete events are time-barred under Morgan”).9 Similarly, with respect to Plaintiff’s failure to accommodate claim (Count II), “the denial of a disabled employee’s request for accommodation starts the clock running on the day it occurs,” and therefore constitutes “a discrete discriminatory act that, like . . . a failure to promote, does not require repeated conduct to establish an actionable claim.” Tobin, 553 F.3d at 130. As such, “the continuing violation doctrine does not apply” regarding Plaintiff’s Count II “and the timeliness of [his] claim turns solely on whether an actionable denial of his request for accommodations occurred during the limitations period.” Id. at 130-31; see also Corosa v. Nashua Hous. Auth., 09-cv-455-JD, 2011 WL 1485613, at *4 (D.N.H. Apr. 19, 2011) (same). 9 As another district court within this Circuit has held, discrete acts of discriminatory conduct constitute independent claims subject to individual limitations periods and may not be used as grounds for extensions based on the continuing violations doctrine. The first three events at issue, i.e., failure to select plaintiff for announced positions on three separate dates, are akin to a failure to promote or hire and are thus, unequivocally separate distinct events each of which carry its own independent limitations period under the Morgan postulate. See Rojas v. Principi, 326 F. Supp. 2d 267, 275 (D.P.R. 2004). Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 17 of 23 PageID #: 358 17 B. Summary Judgment Should be Granted on Plaintiff’s Failure to Promote and “Unequal Pay” Claims Comprising Counts I and III 1. The DLA did not select Plaintiff to interview for the General Supply Specialist positions for the legitimate, non-discriminatory reason that he scored lower than other candidates Plaintiff contends that he was discriminated against on the basis of his deafness and his age by not being selected to interview for the General Supply Specialist positions. 2d Am. Compl. ¶¶ 1, 27-29, 49-51, 69-73. Even assuming Plaintiff can meet the low threshold of establishing a prima facie case, the DLA’s action is well-supported by legitimate, non- discriminatory rationales, not least of which are that his deafness and age were entirely unknown by the DLA Human Resources Specialist who did not select him to interview, and that Plaintiff simply scored too low. Because Plaintiff cannot demonstrate that these justifications on the part of the DLA are mere pretext, summary judgment in Defendant’s favor should be granted. The three-step burden-shifting framework under McDonnell Douglas v. Green, 411 U.S. 792 (1973), generally used by courts in the First Circuit applies here given the absence of direct evidence of discrimination “to facilitate inquiries into whether an employer’s adverse employment decision was motivated by an employee’s disability.” Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999); see also Joyce v. Postmaster Gen., United States Postal Serv., 846 F. Supp. 2d 268, 288 (D. Me. 2012). This framework applies equally to Plaintiff’s ADEA claim.10 See Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir. 2012); Ortiz-Rivera v. Astra Zeneca LP, 363 Fed. App’x 45, 46 (1st Cir. 2010). 10 The First Circuit has not decided the question of whether a “but for” as opposed to a “mixed motive” burden of proof is required of a plaintiff in order for him to survive summary judgment in the particular context of a Section 633a federal sector ADEA claim. See Velazquez-Ortiz v. Vilsack, 657 F.3d 64, 73-74 (1st Cir. 2011) (declining to reach the issue where, “even under the less rigorous ‘mixed motive’ burden,” a plaintiff could not overcome summary judgment); see also Sanchez-Bonilla v. Shinseki, 11-cv-1322-CCC, 2013 WL 496097, at *2-3 (D.P.R. Jan. 31, 2013) (same). This Court has required that age be established as the but-for cause of the federal personnel action, see Joyce, 2013 WL 300754, at *12-13, and other courts have questioned the applicability of a “mixed-motive” burden of proof to actions under 29 U.S.C. § 633a, see Reynolds v. Tangherlini, 737 F.3d 1093, Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 18 of 23 PageID #: 359 18 First, in order to establish a prima facie case, Plaintiff must prove he was disabled, qualified to perform the essential functions of the job, and that the DLA took adverse action against him because of his disability. Rios-Jimenez v. Principi, 520 F.3d 31, 40-41 (1st Cir. 2008); see also Gillen, 283 F.3d at 30 (“the plaintiff first must establish a prima facie case by proving by a [preponderance of the evidence that []he applied for an available position for which []he was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination.”) (quotations omitted). Similarly, regarding his age claim, Plaintiff has the initial burden of showing that he was at least 40 years old at the time of the personnel action, qualified for the positions in question, not hired, and that the [DLA] subsequently filled the position.” Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 138 (1st Cir. 2012); Vélez v. Thermo King de Puerto Rico, Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009). As detailed below, neither Defendant’s deafness nor his age were even known to the DLA Human Resources Specialist who reviewed the subject rating list. As such, Defendant cannot establish even a prima facie case. Yet even if Defendant assumes here, solely for purposes of summary judgment, that Plaintiff could make such a prima facie showing as to his disability and age non-hiring claims doing so would “serve[] only to shift the burden of production to the [DLA]. . . [to] articulat[e]—not necessarily prov[e]—some legitimate, nondiscriminatory reason that justifies” its actions. Cumpiano v. Banco Santander P.R., 902 F.2d 148, 153 (1st Cir. 1990) (disability discrimination); Cameron v. Idearc Media Corp., 685 F.3d 44, 48 (1st Cir. 2012) (age discrimination). The DLA easily makes this showing, and Defendant cannot rebut it. 1096 (7th Cir. 2013). Here Defendant nonetheless assumes for the sake of argument that the mixed motive framework, under which Plaintiff must show that the adverse employment action he suffered was merely “at least in part” due to his age, applies. Even under this less rigorous “mixed motive” burden, Plaintiff cannot overcome summary judgment on his age discrimination claim. Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 19 of 23 PageID #: 360 19 The DLA acted legitimately and without any discriminatory basis in not selecting Plaintiff to interview for the General Supply Specialist positions. It was because higher ranking candidates were considered ahead of him that Plaintiff’s qualifications for the General Supply Specialist GS-07 position were not reviewed and he was not selected to interview. SUMF ¶¶ 65- 66. His answers to the job announcement application automatically generated a score of 85, which was below the cut-off score of 88 used to select interview candidates by Ms. Kendrick, the DLA Human Resources Specialist responsible for the General Supply Specialist job announcement at both the GS-07 and GS-09 levels. Id. ¶¶ 52-54.11 As such, Ms. Kendrick did not review Plaintiff’s application materials or consider him for referral for an interview. Id. ¶¶ 54, 56. The only information Ms. Kendrick possessed and reviewed concerning Plaintiff was that appearing on the auto-generated ranking list comprising the information and eligibilities that Plaintiff himself had selected. Id. ¶¶ 50, 57. In the face of these legitimate reasons, Plaintiff will fail to meet his burden of showing that the DLA’s proffered basis for not selecting him to interview “is mere pretext and that the true reason is discriminatory.” See Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 12 (1st Cir. 2011) (disability); see also Goncalves v. Plymouth Cnty. Sheriff’s Dep’t, 659 F.3d 101, 105 (1st Cir. 2011) (“the ball returns to the plaintiff’s court” to show pretext) (age). Plaintiff cannot show pretext on the DLA’s part under this third, pretext stage of the McDonnell Douglas framework12 because Ms. Kendrick was not even aware of Plaintiff’s deafness or age. SUMF ¶¶ 57, 61-64. Plaintiff, in fact, did not identify himself as a Person with a Disability in his application, which is the only way Ms. Kendrick would have been aware of his deafness. Id. ¶¶ 58-59, 61. Contrary 11 Regarding the GS-09 opening, because Plaintiff’s answers automatically disqualified him from consideration, his name did not even appear on a ranking list. SUMF ¶¶ 67-71. 12 Courts within this Circuit eschew “mechanical formulas” in favor of “case-by-case analysis” when considering the third prong of the McDonnell Douglas framework. See Thomas v. Eastman Kodak Co., 183 F.3d 38, 57-58 (1st Cir. 1999); see also Ridge v. Cape Elizabeth Sch. Dep’t, 101 F. Supp. 2d 16, 18 (D. Me. 1990). Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 20 of 23 PageID #: 361 20 to the entire theory of Plaintiff’s case, his application would have been forwarded to the selecting official to be interviewed if he had identified himself as disabled. Id. ¶¶ 58-59, 61. As such, because Defendant has met the second prong of McDonnell Douglas and Plaintiff cannot meet the third, summary judgment should be granted. 2. Plaintiff is paid as much or more than his non-disabled, younger co- workers for doing the same work Besides his failure to promote theory of recovery, the only other potentially timely basis for relief concerning Counts I and III asserted by Plaintiff is “unequal pay.” See 2d Am. Compl. ¶ 22 (“Despite doing the same work, the Plaintiff is paid less than his non-disabled co-workers, all of whom are younger than the Plaintiff”); SUMF ¶¶ 83-85 (“[f]or years and even now, I have been doing the same work that co-workers do and they are paid more.”). This claim fails as well. Plaintiff is incorrect that he is paid less than his younger, non-disabled colleagues. In fact, not a single other Materials Handler working at DLA Maritime–Portsmouth earns more than he does, regardless of disability, age, or other qualified protected status. Without exception, since joining the DLA in 2010, Plaintiff has earned an hourly salary as a Materials Handler, WG- 6, Step 5, equaling or exceeding that paid to all other Materials Handlers in his department at the Shipyard. SUMF ¶¶ 19-25. In reality, as Plaintiff testified at his deposition, his younger, less- experienced Materials Handler co-workers are not paid as much as he is. Id. ¶ 26. Plaintiff therefore cannot present even a prima facie case. See McDonnell Douglas Corp., 411 U.S. at 802-04. IV. CONCLUSION For the foregoing reasons Defendant requests that partial summary judgment be granted in his favor. Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 21 of 23 PageID #: 362 21 Dated: August 10, 2016 Respectfully submitted Portland, Maine THOMAS E. DELAHANTY II UNITED STATES ATTORNEY /s/ Andrew K. Lizotte Andrew K. Lizotte Assistant U.S. Attorney 100 Middle Street East Tower, 6th Floor Portland, ME 04101 (207) 771-3246 Andrew.Lizotte@usdoj.gov Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 22 of 23 PageID #: 363 22 CERTIFICATE OF SERVICE I hereby certify that on August 10, 2016, I electronically filed the foregoing using the CM/ECF system which will send electronic notifications of such filing(s) to the following: John F. Lambert, Jr., Esq. Maureen M. Sturtevant, Esq. Abigail Varga, Esq. Lambert Coffin P.O. Box 15215 447 Congress Street Portland, ME 04112 jlambert@lambertcoffin.com msturtevant@lambertcoffin.com avarga@lambertcoffin.com Thomas E. Delahanty II United States Attorney /s/ Andrew K. Lizotte Andrew K. Lizotte Assistant U.S. Attorney 100 Middle Street East Tower, 6th Floor Portland, ME 04101 (207) 771-3246 Andrew.Lizotte@usdoj.gov Case 2:14-cv-00400-JAW Document 61 Filed 08/10/16 Page 23 of 23 PageID #: 364