United States District Court, D. Colorado
KATIE V. LEE, Plaintiff,
ERIK K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant.
RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket No. 55)
MICHAEL J. WATANABE, Magistrate Judge.
This case is before this court pursuant to an Order Referring Case (Docket No. 13) issued by Judge Christine M. Arguello on January 8, 2013. Now before the court for a report and recommendation is Defendant's Motion for Summary Judgment (Docket No. 55). The court has carefully considered the subject motion (Docket No. 55), pro se plaintiff Katie V. Lee's response (Docket No. 61), and defendant's reply (Docket No. 62). In addition, the court has taken judicial notice of the court's file, and has considered the applicable Federal Rules of Civil Procedure and case law. The court now being fully informed makes the following findings of fact, conclusions of law, and recommendations.
I. Summary of the Case
Plaintiff filed her Title VII Complaint (Docket No. 1) on November 15, 2012. An Amended Complaint (Docket No. 5) was filed shortly thereafter on December 14, 2012. Plaintiff asserts defendant violated Title VII of the Civil Rights Act ("Title VII") by failing to refer her employment application to the hiring committee and failing to hire her. Plaintiff asserts she was discriminated against because of her age, race/color, and gender. Plaintiff further asserts that her denial was retaliation for her prior equal employment opportunity ("EEO") activity.
The following facts, material to the subject motion, are undisputed unless otherwise noted. On May 5, 2009, plaintiff applied for the position of Readjustment Counseling Therapist ("RTC") with the Department of Veterans Affairs ("defendant" or "VA"). Docket No. 55-7. Plaintiff is a "black African-American" female, and was 60-years old at the time of her application. Docket No. 55-15 at 6:4-14. Plaintiff had previously filed a formal complaint of discrimination in 2007 based on the denial of her application for a Training Instructor position at the VA. Id. at 2-3.
As to the RTC position, the job announcement stated that in order to be considered, applicants "must have specialized experience and/or directly related education" constituting at least one year of GS-9 level or equivalent position that equipped the applicant with the knowledge, skills, and abilities ("KSAs") commensurate with the position. Docket No. 55-11 at 4. The job announcement also provided that the specialized experience qualification could alternatively be met by "[t]hree (3) years of progressively higher level graduate education leading to a Ph.D. degree of Ph.D. or equivalent doctoral degree." Id.
The requirements described above were the time-in-grade ("TIG") requirements for the RTC position. Id .; Docket No. 55-3 at 10:13-15; Docket No. 55-6 ¶ 8. The original job announcement stated that the TIG requirements would remain in place until May 17, 2009. Docket No. 55-11 at 5. On May 11, 2009, the Office of Personnel Management ("OPM") amended the job announcement to reflect that the TIG requirements would remain in effect until August 15, 2009. Docket No. 55-12. On August 11, 2009, OPM published notice in the Federal Register stating that it was withdrawing its rule that would have eliminated the TIG requirements. Docket No. 55-2 at 40057-59.
In a letter dated June 22, 2009, the VA informed plaintiff that she was not being considered further for the RCT position because she did not meet the TIG requirements. Docket No. 55-6 ¶ 8; Docket No. 55-8. The person ultimately selected for the position, James Moorer, had been in a GS-11 position for at least one year prior to his application. Docket No. 55-10 at 2. Moorer is perceived to be a black, African-American male. Docket No. 55-3 at 19:10-21. Tamika Thomas, the individual who reviewed plaintiff's application and determined plaintiff did not meet the TIG requirements, had no knowledge of plaintiff's prior EEO activity at the time she reviewed the application. Docket No. 55-6 ¶¶ 3, 6-9; Docket No. 55-3 at 17:2-23. Doenne Pitts, Assistant Human Resources Officer at the VA, did not review plaintiff's application and was not aware of plaintiff's prior EEO activity at the time plaintiff applied for the position. Docket No. 55-4 at 3:21-24, 19:7-15, 26:9-24. Neil Falkner, Chief of Human Resources at the VA, did not review plaintiff's application and was not aware of plaintiff's prior EEO activity at the time plaintiff applied for the position. Docket No. 55-5 at 3:19-24, 6:8-12, 8:1-14, 8:20-24, 9:4-9, 5:7-9.
II. Standard of Review
Rule 56(a) provides that summary judgment shall be granted "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 party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial." Robertson v. Bd. of Cnty. Comm'rs of the Cnty. of Morgan , 78 F.Supp.2d 1142, 1146 (D. Colo. 1999) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986); Mares v. ConAgra Poultry Co. , 971 F.2d 492, 494 (10th Cir. 1992)). "Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.... These facts may be shown by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings by themselves.'" Southway v. Central Bank of Nigeria , 149 F.Supp.2d 1268, 1273 (D. Colo. 2001), aff'd, 328 F.3d 1267 (10th Cir. 2003). However, "[i]n order to survive summary judgment, the content of the evidence that the nonmoving party points to must be admissible. The nonmoving party does not have to produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible. Hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for summary judgment because a third party's description of a witness supposed testimony is not suitable grist for the summary judgment mill." Adams v. Am. Guarantee & Liability Ins. Co. , 233 F.3d 1242, 1246 (10th Cir. 2000) (internal citations and quotations omitted).
"Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence presented in the motion and response." Southway , 149 F.Supp.2d at 1273. "The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Id . "Unsupported allegations without any significant probative evidence tending to support the complaint' are insufficient... as are conclusory assertions that factual disputes exist." Id . (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986); quoting White v. York Int'l Corp. , 45 F.3d 357, 360 (10th Cir. 1995)). "Evidence presented must be based on more than mere speculation, conjecture, or surmise' to defeat a motion for summary judgment." Id. at 1274. "Summary judgment should not enter if, viewing the evidence in a light most favorable to the non-moving party and drawing all reasonable inferences in that party's favor, a reasonable jury could return a verdict for that party." Id. at 1273.
Plaintiff is proceeding pro se. The court, therefore, reviews her pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. Trackwell v. United States Government , 472 F.3d 1242, 1243 (10th Cir. 2007). See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint to less stringent standards than formal pleadings drafted by lawyers). However, a pro se litigant's conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526 (1983). See Whitney v. New Mexico , 113 F.3d 1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf); Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court may not construct arguments or theories for the plaintiff in the absence of any discussion of those issues). The plaintiff's pro se status does not entitle her to application of different rules. Wells v. Krebs , 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010).
Among the arguments defendant makes in its Motion for Summary Judgment (Docket No. 55) is that plaintiff cannot show a prima facie ...