United States District Court, D. Colorado
ORDER
SCOTT
T. VARHOLAK, UNITED STATES MAGISTRATE JUDGE
This
matter comes before the Court on Defendant's Motion for
Summary Judgment (the “Motion”) [#35]. The Motion
is before the Court on the parties' consent to have a
United States magistrate judge conduct all proceedings in
this action and to order the entry of a final judgment.
[##26, 27] This Court has carefully considered the Motion and
related briefing, the entire case file, and the applicable
case law, and has determined that oral argument would not
materially assist in the disposition of the Motion. For the
following reasons, the Motion is GRANTED in
part and DENIED in part.
I.
BACKGROUND
This
case arises out of the decision of the United States
Department of Treasury not to promote Plaintiff Darlene Kress
to the position of Supervisory Internal Revenue Agent Group
Manager (the “Manager Position”) within the
Internal Revenue Service (“IRS”). [See
generally #1] The undisputed facts are as
follows.[1]
In late
2012, Plaintiff was employed by the IRS as a Revenue Agent
Reviewer. [#41, SOF1; see also #1 at ¶ 7] At
the time, Plaintiff was in her early sixties. [#41, SOF3] She
had been employed with the IRS since 2003 and been supervised
by John Joseph for three years. [Id. at SOF1; #36-13
at 6] Plaintiff had received an overall rating of
“outstanding” on her 2011 Performance Appraisal.
[#41, SOF5; #36-4 at 7]
In
October 2012, the IRS posted an opening for the Manager
Position. [#36-8] Plaintiff and Colleen Krause were among the
applicants for the position.[2] [See #41, SOF2; see
also #1 at ¶ 17; #17 at ¶17] At the time, Ms.
Krause was approximately fifty-two years old and was also
supervised by Mr. Joseph. [#41, SOF3, 16]
Mr.
Joseph completed an Evaluation of Managerial Potential for
Plaintiff and gave her an “outstanding” rating,
the highest rating available. [#36-7 at 1] He further rated
Plaintiff “ready now” in all four categories of
managerial responsibility: leadership, customer satisfaction,
employee satisfaction, and business results. [Id.] A
different IRS official, Adam You, completed an Evaluation of
Managerial Potential for Ms. Krause. [Id. at 2] Mr.
You gave Ms. Krause an “exceeded/exceeds fully
successful” rating, the second highest rating
available. [Id.] Mr. You further indicated that Ms.
Krause was “ready now” for the leadership,
customer satisfaction, and employee satisfaction
responsibilities, but would be ready in one to two years for
the business results responsibility. [Id.]
Sonny
Nelson, the Group Manager of Technical Services for the
Western Area, was asked to rank the technical competency for
all six applicants for the Manager Position. [#1 at ¶
16; #17 at ¶ 16] Mr. Nelson assigned Plaintiff a score
of 94 points and assigned Ms. Krause a score of 72 points.
[#1 at ¶ 17; #17 at ¶ 17; see also #36-11]
Bridgette Dinkins with the IRS's Human Capital Office in
Philadelphia also ranked the six applicants. [#1 at ¶
18; #17 at ¶ 18] Ms. Dinkins rated Plaintiff “best
qualified, ” Ms. Krause “highly qualified,
” and the other four applicants
“qualified.” [#36-12] An interview panel also
interviewed the applicants. [#35-5 at 3] One of the
interviewers stated that she believed Plaintiff would be
successful in the Manager Position. [#36-15 at 2]
Mr.
Joseph was the “selecting official” for the
Manager Position. [#41, SOF4] Mr. Joseph stated that he
reviewed the interviewers' notes but did not interview
the applicants himself. [#35-5 at 4] Based upon his review of
the interviewers' notes and the applicants' responses
to the interviewers' questions, Mr. Joseph concluded that
“[w]hile neither applicant vastly stood out over the
other[, ] [Ms. Krause] portrayed herself as more personal in
managing group members as well as addressing situations
outside of the normal operations of the group.”
[Id. at 5] And while Plaintiff “came across as
a stronger technician, ” the “position [was] for
a manager[, ] not a technician.” [Id.]
Mr.
Joseph also stated that Ms. Krause's cover letter and
application “described diverse experience related to
accounting, human resources and administration.”
[Id.] He was also impressed by Ms. Krause's
experience working as a tax compensation specialist, because
in that role Ms. Krause needed to “take others[']
work and produce a tax computation, ” thereby
demonstrating managerial ability. [Id.] Moreover,
Ms. Krause had previous experience as a manager and taught at
a community college. [Id. at 6] As a result, Mr.
Joseph decided to select Ms. Krause for the Manager Position.
[#41, SOF4] Mr. Joseph's supervisor, Area Director Rodney
Kobayashi, approved the selection and Ms. Krause was hired
for the Manager Position. [Id.]
On
December 13, 2012, Mr. Joseph informed Plaintiff that she had
not been selected for the Manager Position. [Id. at
SOF17] The next day, Plaintiff contacted an Equal Employment
Opportunity (“EEO”) Counselor. [Id. at
SOF19] About a week later, Plaintiff informed Mr. Joseph that
she had contacted an EEO counselor about her non-selection
for the Manager Position. [#36-1 at 2] On January 9, 2013, an
EEO Counselor contacted Mr. Joseph about Plaintiff's
discrimination allegations. [#41, SOF20] Plaintiff filed an
EEO Complaint on February 27, 2013, alleging age
discrimination in the selection of the Manager Position.
[#35-3]
Meanwhile,
on December 18, 2012, Mr. Joseph completed a Performance
Appraisal for Plaintiff. [#36-5] He gave her an overall score
of 4.8 out of 5, and an “outstanding” overall
rating. [Id.] Because of the Performance Appraisal,
Plaintiff automatically became eligible for a Quality Step
Increase (“QSI”) award. [#41, SOF22-23] The QSI
award includes an Award Certificate. [Id. at SOF43]
Plaintiff could select from three types of awards: cash,
time-off, or a quality step increase in pay. [Id. at
SOF22] On December 20, 2012, Plaintiff selected the time-off
award, which Mr. Joseph had previously approved when he
completed the Performance Appraisal. [#36-5 at 7; #36-19;
#41, SOF24] Mr. Joseph testified that he transmitted the QSI
award “to the next person.” [#35-6 at 26-27
(25:17-26:5)]
On or
about June 7, 2013, Plaintiff had still not received her QSI
award and sent an electronic inquiry asking about the status
of her award. [#36-29] Bettina Lewis, a payroll specialist,
responded that Plaintiff had not made an election as to the
form of the award that she was requesting. [#41, SOF26]
Plaintiff then changed her election to request a cash award,
rather than time-off. [Id. at SOF27] But, three
months earlier, the IRS had cancelled cash awards in lieu of
quality step increases in pay due to budgetary constraints.
[Id. at SOF30] This cancellation of cash awards led
to a class-action grievance filed by the National Treasury
Employees Union (“NTEU”). [Id. at SOF31]
The NTEU and the IRS eventually settled the dispute and on
April 8, 2014, Plaintiff received a cash disbursement for her
2012 QSI award. [Id. at SOF31-34] According to
Plaintiff, this cash payment was less than she would have
received had a request for cash payment been initially
submitted in December 2012. [#36-1 at 3]
Plaintiff
initiated this action in January 2018 asserting two claims
for relief: age discrimination, in violation of the Age
Discrimination in Employment Act (“ADEA”), and
retaliation for opposing a violation of the ADEA. [#1]
Defendant argues that the undisputed facts demonstrate that
the IRS did not intentionally discriminate against Plaintiff
based on her age when she was not selected for the vacant
Manager Position. [#35 at 5-9] With respect to the
retaliation claim, Defendant argues that Plaintiff was not
subject to a materially adverse employment action and, in any
event, she has failed to adduce admissible evidence to permit
an inference that she was subject to retaliation.
[Id. at 9-15] Plaintiff has responded to the Motion
[#38], and Defendant has filed a reply [#42].
II.
STANDARD OF REVIEW
Summary
judgment is appropriate only 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); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal
Co., 41 F.3d 567, 569 (10th Cir. 1994). When the moving
party does not bear the burden of persuasion at trial, the
movant may satisfy its initial burden of making a prima facie
demonstration of the absence of a genuine issue of material
fact “simply by pointing out to the court a lack of
evidence . . . on an essential element of the nonmovant's
claim.” Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 670-71 (10th Cir.1998). If the movant carries this
initial burden, the burden then shifts to the nonmovant
“to go beyond the pleadings and set forth specific
facts that would be admissible in evidence in the event of
trial.” Id. at 671 (quotation omitted).
“[A]
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249 (1986)). Whether there is a
genuine dispute as to a material fact depends upon whether
the evidence presents a sufficient disagreement to require
submission to a jury. See Anderson, 477 U.S. at
248-49; Stone v. Autoliv ASP, Inc.,210 F.3d 1132,
1136 (10th Cir. 2000); Carey v. U.S. Postal Serv.,812 F.2d 621, 623 (10th Cir. 1987). A fact is
“material” if it pertains to an element of a
claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went
to trial, a reasonable party could return a verdict for
either party. Anderson, 477 U.S. at 248.
“Where the record taken as a whole could not lead a
rational trier of ...