Acosta-Vega v. Brown, CIV. 94-1450 SEC.

• Decision Date: 31 July 1998
• Docket Number: No. CIV. 94-1450 SEC.,CIV. 94-1450 SEC.
• Citation: 14 F.Supp.2d 177
• Parties: Luis A. ACOSTA-VEGA, Plaintiff, v. Jesse BROWN, Secretary of Veterans Affairs, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

14 F.Supp.2d 177

Luis A. ACOSTA-VEGA, Plaintiff, v. Jesse BROWN, Secretary of Veterans Affairs, et al., Defendants.

No. CIV. 94-1450 SEC.

United States District Court, D. Puerto Rico.

July 31, 1998.

María S. Kortright-Soler, San Juan, PR, Victoria A. Ferrer-Kerber, Hato Rey, PR, for Plaintiff.

Isabel Muñoz-Acosta, Assistant U.S. Attorney, U.S. Attorney's Office, District of Puerto Rico, San Juan, PR, for Defendants.

OPINION AND ORDER

CASELLAS, District Judge.

This case is before the Court on defendants' motion for summary judgment (Docket # 33), and plaintiff's Rule 56(f) motion requesting a stay of the disposition of defendants' motion until further discovery has been provided (Docket # 37), both of which were duly opposed (Dockets # 36, 38). In their motion for summary judgment, defendants essentially argue that plaintiff's allegations fail to reach the necessary plateau for an actionable Title VII claim, thereby fashioning that this case is ripe for summary judgment. For the reasons stated below in this Opinion and Order, plaintiff's motion for a stay of disposition is DENIED, and defendant's motion for summary judgment is GRANTED.

Factual Background

The events which allegedly gave rise to the instant action began on June 9, 1985, when the Puerto Rico Department of Veterans' Affairs hired Luis Acosta-Vega as a GS-2/1 temporary File Clerk. On October 27, 1985, plaintiff was promoted to a permanent position as a GS-3/1 File Clerk. From that position, he was promoted on July 19, 1987 to a GS-4/1 Program Clerk; and subsequently, on April 8, 1990, he was promoted to the position of GS-5/2 Claims Clerk. It was at this point that the "winter of discontent" commenced for Mr. Acosta-Vega. However before we proceed any further, we believe it is necessary to provide a swift seminar on the process that all internal applicants for promotion follow at the Veterans Administration.

The first step requires applicants to obtain an appraisal from their supervisor. This appraisal system rates the applicant's knowledge, skills, abilities, and other characteristics ("KSAO's") for the specific position that the applicant is seeking. These KSAO appraisals have a numerical rating system beginning with 5 and ending with 0. A rating of 5 signifies that the applicant's "performance warrants special mention for placement consideration," while a 0 signifies that the supervisor is unable to rank the applicant in that particular category.

The next step requires a personnel officer to inquire as to whether or not the applicant has met the educational and yearly experience requirements for the position sought. If the applicant meets this requirement, then his name is forwarded to a rating panel.¹ This rating and ranking promotion panel consists of a Personnel Division Staff member and two subject matter experts who are cognizant of what skills the individual selected needs to possess.

This rating panel makes an "overall factor quality level determination" for each of the candidates that takes into consideration their education, experience, training, outside experience, and awards. Each of these factors is subsequently given a numerical value and a final rating number is generated for each applicant. The applicants are then rated numerically from highest to lowest as the panel ascertains whether or not a "meaningful break" is present at some point on the list.² The candidates that are above the break are termed "the best qualified for referral." If no break line exists, the six highest ranking candidates are placed on the best qualified list. This list is then passed on to the selecting official. The selecting official then has the right to select or not select a candidate from the "promotion certificate" provided to him by the promotion panel.

We will now summarize Mr. Acosta-Vega's attempts for promotion to different positions within the Veterans Administration. On May 5, 1990, Acosta-Vega applied for the position of Contact Representative; he was one of twenty-three applicants for this position. He received two 5 rankings and three 4 rankings on his supervisory appraisal. After receiving the applications and all other necessary information, the rating panel ranked the candidates for promotion. Plaintiff received a total of 15 points in this ranking; however, the meaningful break occurred at 18 points because there were eight candidates that ranked 18 or higher. Plaintiff did not, therefore, make the final "highly qualified list." The panel finally selected a Hispanic male for the position, and plaintiff did not appeal their decision to the Equal Employment Opportunity Commission.

Then on August 2, 1990, plaintiff applied for the position of Loan Specialist; he was one of sixteen candidates for the position. On his supervisory appraisal, he received two 5 rankings, one 4, one 3, and one 2. When the panel tallied the qualifications of the pool of applicants, plaintiff received a score of 10. This number once again left him off the "highly qualified list" because the meaningful break occurred at 13.5. The panel eventually selected a Hispanic female for the position, and once again Mr. Acosta-Vega failed to appeal that decision.

On November 29, 1990, plaintiff applied for the position of Fiduciary Account Clerk along with eight other applicants. He received a 5 in three factors and a 0 in one factor on his supervisory appraisal. In this case, no ratings panel was formed because only two of the nine applicants were seeking promotions. Therefore, a personnel officer was assigned the task of selecting the candidate for the position. A Hispanic male was eventually selected for it, and plaintiff again failed to seek an appeal.

Next, on December 28, 1990, Mr. Acosta-Vega applied for the position of Fiduciary Account Examiner along with seven other people. His application was forwarded to the selecting official even though he failed to submit the required supervisory appraisal or supplemental qualification statement. In this instance, once again due to the limited number of applicants seeking promotion, no selecting panel was convened. A Hispanic female was finally selected for the position, and plaintiff did not appeal that decision.

On January 17, 1991, plaintiff applied for the position of Veterans Claims Examiner; he was one of seventeen applicants for the position. Mr. Acosta-Vega received a 5 in two factors, and a 3 in two factors on his supervisory appraisal. In this instance, the ratings panel determined the meaningful break to be 16.5, the exact number which plaintiff received. Therefore, Mr. Acosta-Vega made the list of "highly qualified candidates." Nevertheless, he was not one of the four candidates selected for the position by the selection panel. The panel selected four Hispanic males for the positions, but plaintiff failed to appeal this decision to the Equal Employment Opportunity Committee.

Then on February 14, 1991, Mr. Acosta-Vega applied for the position of Contact Representative along with twenty-five other candidates. He received ratings of 5 in three factors of his appraisal, and 4 in two factors. While plaintiff received a score of 17 by the ratings panel, the meaningful break occurred at 18. As a result, plaintiff failed to make the final list of "highly qualified candidates," and also did not appeal the decision when two Hispanic females were selected for the position.

On June 12, 1991, Mr. Acosta-Vega applied for the position of Supervisory Program Assistant along with nine other individuals. In his supervisory appraisal, plaintiff received 5 in three factors and a 4 in one factor. There were seven qualified candidates for the position, and no ratings panel was convened because less than five of the applicants sought a promotion. Subsequently, the selecting official chose a Hispanic male for the position.

Next, in August of 1991, plaintiff applied again for the position of Contact Representative; he was one of seventeen applicants. In his supervisory appraisal he received a 3 in all of the factors. When the panel determined the meaningful break to be at 19 points, eight applicants made the "highly qualified list." However, plaintiff was not one of the candidates because he received a total of 15 points. The panel selected a Hispanic female for the position; plaintiff did not appeal.

On September 12, 1991, Mr. Acosta-Vega applied for the position of Veterans Claims Examiner; he was one of eighteen candidates for the position. He received a 3 on three factors and a 5 in one factor of the supervisory appraisal. Since there was no meaningful break among the candidates, the 6 highest applicants' names were forwarded to the selecting officer. Plaintiff was one of these six highest ranking candidates; however he was not selected for the position. The selecting official selected a Hispanic male for the position. Plaintiff did not appeal.

Then on February of 1992, plaintiff again applied for the position of Veterans Claim Examiner, and since it was a continuous announcement for the same position, the same pool of applicants was used again. The eleven highest ranking applicants, including plaintiff, comprised the "highly qualified list", but this list was rescinded because no veterans preference points were allotted to those individuals who had earned them.³ Therefore, the panel was forced to begin anew when the position was reopened in July of 1992. When this occurred, plaintiff received ratings of 3 in three factors and a 4 in another factor. When the panel calculated and ranked the applicants, plaintiff fell below the highly qualified level of 15 points since he had earned only 14. However, once again plaintiff failed to appeal this decision to the EEOC.

Next, on August 4, 1992, plaintiff applied for the position of Supervisory Program Assistant, along with three other individuals. In this instance Mr. Acosta-Vega failed to obtain a supervisory appraisal. Since there were only four applicants for the...