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Glapion v. Jewell

United States District Court, D. Colorado

May 2, 2016

SALLY JEWELL, Secretary, U.S. Department of the Interior, Defendant.


Michael E. Hegarty United States Magistrate Judge.

Before the Court is Defendant’s Motion for Summary Judgment (“Motion”) [filed January 16, 2016; docket #54]. The Motion is fully briefed, and the Court finds that oral argument will not assist in its adjudication of the Motion. Based on the record herein and for the reasons that follow, the Court grants the Motion.[1]


I. Procedural History

Plaintiff, proceeding pro se, initiated this action on November 26, 2014. Complaint, docket #1. Plaintiff’s claims arise from her denial of employment wit the United States Department of the Interior (“DOI”). See generally Complaint, docket #1. She alleges she was discriminated against on the basis of race, color, and sex, and retaliated against based on prior Equal Employment Office (“EEO”) activity when the DOI first selected her for employment at a lower level than she thought she was qualified (GS-7 instead of GS-9), and then rescinded her employment offer. Id. She brings both her claims under Title VII of the Civil Rights Act of 1964, as amended (“Title VII”). Id.

II. Findings of Fact

The Court makes the following findings of fact viewed in the light most favorable to Plaintiff, who is the non-moving party in this matter.[2]

A. The Selection Process

1. In late 2013, the Bureau of Reclamation (“BOR”), a component of the DOI, advertised for two Program Analyst positions, between the grades of GS-5 and GS-9. Ex. 1 (position announcement) (authenticated by Ex. 2 (Plaintiff deposition) at 43:25-44:15).

2. The position announcement stated, in part, “After making a tentative job offer, a suitability and/or security background check will be conducted.” Ex. 1 at 5.

3. Karl Stock, Manager of the Reclamation Law Administrative Division, was responsible for making the recommendations for hiring from that position announcement; he eventually recommended a selectee at GS-7 (Plaintiff) and one at GS-9 (Scott Hutchins). Ex. 3 (Stock Declaration) at ¶ 2. They were hired off of two different job numbers but both under the same, single hiring process. See, e.g., docket #63-17 at 1 (listing both announcement numbers in weighing and rating plan); docket #63-20 at 1 (“Consolidated Merit Promotion Worksheet” for Plaintiff listing both announcement numbers); docket #63-2- at 2 (“Consolidated Merit Promotion Worksheet” for Hutchins listing both announcement numbers); docket #63-21 (“Panel Members and Subject Matter Experts Statement of Understanding and Agreement” listing both announcement numbers); docket #63-22 at 2 (white board notes regarding candidates for both positions); docket #63-22 at 2 (email from Stock asking for recommendations regarding candidates for both positions); see also Stock Supplemental Declaration, exh. 16 ¶¶ 4-8 (indicating that the two job announcement numbers were part of the same hiring process).

4. Stock asked that a rating panel assist in the preliminary selection process by evaluating application materials submitted by applicants. Ex. 3 at ¶ 4.

5. There were two people on the ratings panel, and they memorialized their ratings on ratings sheets. Ex. 3 at ¶ 4.

6. The ratings sheets rated Plaintiff 35 out of 70 points and noted “Experience minimally related to water resources, but demonstrated evidence of communication outside of her organization and outreach skills. Responses showed some weakness in her writing skills.” Ex. 3 at ¶ 4.

7. The ratings sheets rated Hutchins 56 out of 70 points. Ex. 3 at ¶ 4.

8. In making his decision to offer Plaintiff a GS-7 and Hutchins a GS-9 position, Stock also considered the resumes and responses to questions on USAJobs from Plaintiff and Hutchins. Ex. 3 at ¶ 5.

9. Plaintiff provided a resume to be considered for the position. Plaintiff’s exh. 18. She also provided responses to questions on USAJobs. Ex. 4. Ex. 3 at ¶ 5. Plaintiff has a Masters of Public Administration. Id.

10. Hutchins also provided a resume and USAJobs responses to be considered for a position. Ex. 5. Ex. 3 at ¶ 5.

11. In making his decision to offer Plaintiff a GS-7 and Hutchins a GS-9 position, Stock also considered the interviews he conducted of Plaintiff and Hutchins. Ex. 3 at ¶ 6.

12. From those interviews, Stock concluded that Hutchins articulated a far greater command of the principles of program and policy analysis as related to natural resources management than did Plaintiff. Ex. 3 at ¶ 6.

13. Based on the panel rating sheets, resumes, USAJobs responses, and interviews, Stock concluded that it was far more likely that Hutchins would be able to immediately and readily take on program analysis assignments with some degree of independence, whereas Plaintiff would need more training, coaching, and time on the job in order to perform at the same level. Ex. 3 at ¶ 7. Hutchins was nearing completion of a law degree and had taken classes in water law and natural resources [see docket #63-19 at 6-7], which relate directly to the job announcement regarding water-resource policy and contracting for the BOR [see docket #54-1- at 2].

14. Those are the key differences for Stock between GS-9 and GS-7 Program Analysts, and those are the reasons Stock recommended offering Plaintiff a GS-7 position rather than a GS-9 position. Ex. 3 at ¶ 7.

15. At the time Stock recommended the selection of Plaintiff, he was aware of Plaintiff’s prior EEO activity because she had told him about it. Ex. 6 (Stock EEO Affidavit) at 3, 9; Ex. 2 at 78:23-80:20.

B. Withdrawal of the Offer

16. Plaintiff was offered the GS-7 position, and she accepted. Ex. 7 (Smith Declaration) at ¶ 2.

17. Jawann Smith, a Human Resources Specialist, asked Plaintiff to complete an OF-306 (Declaration for Federal Employment). Ex. 7 at ¶ 3.

18. Persons who accept federal employment offers are required as a matter of course to complete OF-306s and other information prior to actual employment. Ex. 7 at ¶ 4.

19. The instructions for the OF-306 stated, in part, “[t]he information collected on this form is used to determine your acceptability for Federal and Federal contract employment.” Ex. 8 (OF-306) at 2 (authenticated at Ex. 2 at 57:20-58:5).

20. Plaintiff’s completed OF-306 was returned to BOR. Ex. 8.

21. Ron Dale was a Human Resources Officer at BOR at the time Plaintiff was extended an offer. Ex. 9 (Dale Declaration) at ¶ 1.

22. Dale has extensive experience working in federal HR, including positions in which he had knowledge of EEO and Merit System Protection Board (“MSPB”) processing times. Those positions include: 1995 to 2000 as Employee Relations Specialist at the Air Force Academy Personnel Office; 2000 to 2001 as Employee Relations Specialist for the Lower Colorado Region of BOR (when he was the technical representative for MSPB cases working with an agency attorney); 2001 to 2005 as Human Resources Director for the Forest Service Rocky Mountain Research Station (when he was the key point of contact for all MSPB and EEO cases); 2005 to 2006 as the Forest Service Chief of Labor and Employee Relations Branch (when he saw tracking of EEO and MSPB complaints and how long they took from start to finish); and from 2006 to 2013 as Labor Relations Specialist at Animal Plant Inspections Service, USDA. Ex. 9 at ¶ 3.

23. In some of those positions, Dale participated or monitored EEO and MSPB cases in one way or another and was aware of how long EEO and MSPB cases can take to reach final disposition. Ex. 9 at ¶ 3.

24. One of Dale’s duties at BOR in 2014 was to do pre-screening of potential hires, that is, reviewing materials provided by a selectee such as an OF-306, SF-50, and a selectee’s resume, to determine if there was a barrier to employment. Ex. 9 at ¶ 2.

25. Dale conducted a pre-screening for Plaintiff’s selection. Ex. 9 at ¶¶ 4-8.

26. Dale reviewed Plaintiff’s OF-306 and resume as part of the pre-screening process. The OF-306 asks various questions that may affect the employability of a selectee. In the case of Plaintiff, her response to question 12 drew Dale’s attention. Ex. 9 at ¶ 4.

27. Question 12 of the OF-306 asks:

During the past 5 years, have you been fired from any job for any reason, did you quit after being told that you would be fired, did you leave any job by mutual agreement because of specific problems, or were you debarred from Federal employment by the Office of Personnel Management or any other Federal Agency? If ‘YES, ’ use item 16 to provide the date, ...

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