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Anderson v. Department of Veterans Affairs

United States District Court, N.D. Indiana, Fort Wayne Division

March 30, 2017

RALPH ANDERSON, JR., Plaintiff,
v.
DEPARTMENT OF VETERANS AFFAIRS, et al., Defendants.

          OPINION AND ORDER

          Susan Collins, United States Magistrate Judge

         This is an employment discrimination and retaliation action in which Plaintiff Ralph Anderson, Jr., alleges that Defendant Department of Veterans Affairs (“the VA”), failed to hire him on the basis of his race, in violation of Title VII, and retaliated against him for engaging in statutorily protected activity, also in violation of Title VII. (DE 1 ¶¶ 31, 33). Before the Court is a motion for summary judgment filed by the VA. (DE 23). This motion has been fully briefed by the parties (DE 24, 29, 30, 33), and is now ripe for adjudication. For the reasons explained herein, the VA’s motion for summary judgment will be DENIED.

         I. LEGAL STANDARD

         On a motion for summary judgment, “[t]he court shall grant summary judgment 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). Summary judgment may be granted only if there are no disputed genuine issues of material fact. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). When ruling on a motion for summary judgment, a court “may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.” Id. The only task in ruling on a motion for summary judgment is “to decide, based on the evidence of record, whether there is any material dispute of fact that requires a trial.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).

         If the evidence is such that a reasonable factfinder could return a verdict in favor of the nonmoving party, summary judgment may not be granted. Payne, 337 F.3d at 770 (citation omitted). A court must construe the record in the light most favorable to the nonmoving party and avoid “the temptation to decide which party’s version of the facts is more likely true[,]” as “summary judgment cannot be used to resolve swearing contests between litigants.” Id. (citation omitted). However, “a party opposing summary judgment may not rest on the pleadings, but must affirmatively demonstrate that there is a genuine issue of material fact for trial.” Id. at 771 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

         II. FACTUAL AND PROCEDURAL BACKGROUND

         Anderson is an African-American male who has never served in the military. (DE 24-8 at 4; DE 24-5 at 50; DE 30-1 ¶ 2). Anderson initially applied for a position as an air conditioning mechanic at the VA Northern Indiana Health Care System (“NIHCS”) in October 2008. (DE 24-5 at 6; DE 24-6 at 19; DE 24-9; DE 30-1 ¶ 9). At the time of Anderson’s initial application, the director of the NIHCS was Cathi Spivey-Paul; the associate director who supervised the engineering department was Deborah McCormick; the manager of the engineering department was Charles Applewhite; and the manager of human resources was Brian Flynn. (DE 24-6 at 66-67).

         Anderson was selected as one of five candidates to interview for the open air conditioning mechanic position. (DE 24-5 at 14-15; DE 24-6 at 19; DE 24-9). The interviewers asked all of the candidates the same questions and then scored the candidates based on their answers; the selecting official, Applewhite, would then select the candidate who would be offered the position. (DE 24-6 at 21-23, 75; DE 30-2 at 19). While Applewhite could select any candidate, he had to justify his reasons if he chose a candidate with a lower score over one with a higher score. (DE 24-6 at 22). Applewhite typically selected the candidate with the highest interview score, unless there was a matter “of real concern.” (DE 24-6 at 75).

         Applewhite selected Anderson for the open air conditioning mechanic position on December 3, 2008. (DE 24-5 at 17; DE 24-10; DE 30-1 ¶ 11; DE 30-2 at 14-16). Anthwon Cooper, a human resources specialist, called Anderson to inform him that he had been selected for the position. (DE 24-5 at 15). Flynn, the human resources manager, decided that Anderson would be de-selected. (DE 24-5 at 17; DE 24-11). Cooper called Anderson again to tell him that he had been de-selected from the position and no one would be selected at that time. (DE 24-5 at 16). Anderson filed a discrimination complaint, which he later agreed to withdraw after mediation, in exchange for a two-year term appointment as an air conditioning mechanic at NIHCS Fort Wayne. (DE 24-5 at 17-18; DE 24-12; DE 24-18; DE 30-1 ¶ 19). The mediation settlement agreement was approved by Spivey-Paul and was also signed by Flynn and Cooper. (DE 24-6 at 61-62; DE 24-18).

         During the time Anderson worked at NIHCS for his two-year term position, he had no negative experiences or problems based on his race or based on the fact he was hired in settlement of his discrimination complaint. (DE 24-5 at 23-24). In May 2010, while Anderson was working at NIHCS, Dwight Loveless, who was white and who had been working as a housekeeping aide for the VA, settled a discrimination claim against the NIHCS. (DE 24-5 at 43, 54; DE 24-6 at 33-36, 42-43; DE 24-14; DE 24-17; DE 30-4 at 24). Loveless received a permanent air conditioning mechanic position in settlement of his discrimination claim. (DE 24-6 at 35-36; DE 24-17; DE 30-4 at 24). Flynn approved Loveless’s promotion to settle his discrimination case. (DE 30-3 at 7). Loveless’s settlement was also approved by Interim Director Kimberly Radant, who took over on an interim basis after Spivey-Paul had left the director position. (DE 24-6 at 62-63, 68; DE 24-17). Anderson did not file any complaints regarding Loveless’s hiring to the permanent position. (DE 24-5 at 47, 56).

         During Anderson’s term position, all of his evaluations were satisfactory or better. (DE 30-1 ¶ 25). His supervisors also stated that he did good work. (DE 30-10 at 5-6). Anderson’s two-year term position ran from August 2009 to October 2011. (DE 30-1 ¶ 24). As his term was coming to an end, Anderson requested that his term be converted to a permanent position or that his term be extended. (DE 30-1 ¶ 26). While term positions are “seldom converted” to permanent positions, extensions of term positions are “more likely to happen than not” at the NIHCS, and there was a continuing need for an air conditioning mechanic after the expiration of Anderson’s term. (DE 30-2 at 30). The VA denied Anderson’s requests for conversion to a permanent position or extension of his term (DE 30-1 ¶¶ 26-27), and his term expired on October 8, 2011 (DE 24-8 at 4; DE 24-13; DE 30-1 ¶ 27).

         In early 2012, the NIHCS announced three open air conditioning mechanic positions in Fort Wayne. (DE 24-6 at 43-45; DE 24-8 at 9-10; DE 24-15; DE 30-1 ¶ 28). Anderson applied for these positions. (DE 24-5 at 25; DE 24-8 at 9-10; DE 30-1 ¶ 29). Anderson was one of five candidates who were selected to interview telephonically. (DE 24-5 at 26; DE 24-15; DE 24-24; DE 24-25). One candidate dropped out, which left Anderson, Mark Coleman, Mark Sewell, and Michael Duzan as the candidates to be interviewed. (DE 24-24). Other than Anderson, the interviewing candidates were all white. (DE 24-5 at 26; DE 24-25; DE 30-1 ¶ 32). Duzan served as a member of the Air Force in the Persian Gulf war zone during Operation Desert Storm. (DE 24-7 at 10-11; DE 24-20; DE 24-21; DE 24-22; DE 30-6 at 10-11). Duzan was therefore veterans’ preference eligible. (DE 24-7 at 10-11; DE 24-20; DE 24-21; DE 24-22). Duzan also had prior work experience in heating and air conditioning at both the residential and industrial levels, as well as experience with the Indiana National Guard. (DE 24-7 at 9-11; DE 24-20; DE 24-21). Sewell and Coleman were not veterans. (DE 30-2 at 46; DE 30-8 at 13).

         The interviewers of the candidates were Tom Foisy, an air conditioning mechanic at the NIHCS, Don Wigner, who replaced Runda as plant foreman, and John Hendricks, who was an engineering supervisor in Marion, Indiana. (DE 24-5 at 20, 27-28; DE 24-19). Anderson had previously worked with both Foisy and Wigner during his term position, and he had not had any negative interactions with either of them. (DE 24-5 at 27-29). Anderson had never met Hendricks before. (DE 24-5 at 29-30). The interviewers asked questions of each of the candidates and scored the candidates based on their answers. (DE 24-6 at 21-22; DE 24-19). Coleman received 266.5 points; Sewell received 207 points; Anderson received 171.5 points; Duzan received 162.5 points. (DE 24-6 at 71; DE 24-19). On April 6, 2012, Applewhite selected Coleman, Sewell, and Anderson for the three open positions. (DE 24-6 at 45-46; DE 24-15). Gay Andrick-Nieman, a human resources specialist, called Anderson to tell him that he had been selected for the position, which would begin on May 7, 2012. (DE 24-5 at 32; DE 24-16; DE 24-25; DE 30-3 at 12-13).

         On April 10, 2012, Renae Jacobson, the assistant human resources officer, realized that Duzan was a preference-eligible veteran who had been passed over for a position in violation of federal law. (DE 24-2 ¶¶ 5, 7; DE 24-3 ¶ 5; DE 24-4 ¶ 5; DE 24-16). Jacobson notified Amanda Dean, who had replaced Flynn as human resources manager, and Helen Rhodes, who was the new associate director who supervised the engineering department, about the mistake that had been made by passing over Duzan. (DE 24-2 ¶¶ 5, 9; DE 24-3 ¶ 5; DE 24-4 ¶ 5; DE 24-5 at 41-42; DE 24-6 at 50, 68-69; DE 24-16). Jacobson contacted the VA’s delegating examining unit (“the DEU”), which must approve the passing over of any preference-eligible veteran, to ask if it would be possible to pass over Duzan. (DE 24-2 ¶¶ 7-8; DE 24-16; DE 30-3 at 11). The DEU informed Jacobson that the VA needed to hire Duzan if he wanted the position, because he was a preference-eligible veteran. (DE 24-2 ¶¶ 7-8; DE 24-16; DE 30-3 at 11). Jacobson confirmed that Duzan did want the position. (DE 24-2 ¶¶ 7-8; DE 24-16).

         Jacobson met several times with Dean and Rhodes to discuss de-selecting one of the applicant’s job offers in order to give one of the positions to Duzan, because there would not be any other positions coming open in the future. (DE 24-2 ¶¶ 10, 12; DE 24-3 ¶ 7; DE 24-4 ¶ 6; DE 24-6 at 47-50; DE 24-16; DE 30-3 at 11). Rhodes was Dean’s direct supervisor, and Jacobson was an assistant to Dean. (DE 24-2 ¶ 2; DE 24-4 ¶ 2). While Dean and Jacobson did not know Anderson’s race and did not know that he had previously filed a discrimination claim against the VA (DE 24-2 ¶¶ 13-14; DE 24-3 ¶¶ 10-11; DE 24-5 at 42), Rhodes did know that Anderson was African American, and she also knew that he had previously filed a discrimination claim against the VA. (DE 24-4 ¶ 10; DE 30-10 at 8-9). Rhodes knew that Anderson had obtained his temporary position as a result of the settlement of his prior discrimination claim. (DE 30-10 at 9). After meeting with Dean and Rhodes, Jacobson “was told to rescind the offer from Ralph Anderson, Jr.” (DE 24-16; DE 30-3 at 11). While there was not “one individual” who made the decision to de-select Anderson, Rhodes participated in, at least to some extent, Anderson’s de-selection. (AR 24-4 ¶ 9; AR 30-10 at 8).

         On April 23, 2012, Andrick-Nieman called Anderson and told him he had been deselected for the position. (DE 24-5 at 34; DE 24-25). Approximately a week later, Andrick-Nieman called Anderson again to tell him that the reason for his de-selection was that he had “jumped a vet on the certification letter” who “had veteran preference.” (DE 24-5 at 37-38). Anderson filed an internal complaint with the VA on August 11, 2012, alleging that he had been discriminated against on the basis of his race and retaliated against after engaging in protected activity. (DE 24-25).

         On January 14, 2013, in a letter responding to questions posed to her by an EEO investigator, which was signed “under penalty of perjury,” Andrick-Nieman stated that “[a]ll of the candidates interviewed were veterans, except for Mr. Anderson.” (DE 30-3 at 12-13). Andrick-Nieman explained that Anderson was “selected in error” because “there was a veteran on the list ahead of him,” whom she believed had been passed over because the veteran’s name was on the back side of a double-sided piece of paper. (DE 30-3 at 13). Andrick-Nieman stated that “[t]he veteran in question was actually ranked the highest out of all the candidates . . . .” (DE 30-3 at 13). Andrick-Nieman concluded that “[s]ince Mr. Anderson was the only non-veteran, he was the one that was de-selected.” (DE 30-3 at 13).

         Also during January 2013, Rhodes answered questions posed to her by an EEO investigator during a telephonic examination. (DE 30-10). Rhodes explained that during the selection of the air conditioning mechanics, there was an error and “they realized that technically they had passed over a veteran to select a nonveteran,” so “then they had to go back and correct that mistake.” (DE 30-10 at 7). Rhodes stated that she “believe[d] [Anderson] was the only one that was a non-veteran, but [she was] not positive.” (DE 30-10 at 8).[1]

         The VA denied Anderson’s claim on February 27, 2014. (DE 24-26). Anderson then filed the instant lawsuit on April 24, 2014. (DE 1).

         III. ANALYSIS

         The VA argues that it is entitled to summary judgment on both of Anderson’s Title VII claims. The Court will address the VA’s arguments regarding Anderson’s discrimination claim before turning to the VA’s arguments regarding Anderson’s retaliation claim.

         A. Anderson’s ...


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