Kress v. Mnuchin

          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 ...