Shelley v. Geren

• Decision Date: 12 January 2012
• Docket Number: No. 10–35014.,10–35014.
• Citation: 12 Cal. Daily Op. Serv. 536,95 Empl. Prac. Dec. P 44392,2012 Daily Journal D.A.R. 14,114 Fair Empl.Prac.Cas. (BNA) 303,666 F.3d 599
• Parties: Devon S. SHELLEY, Plaintiff–Appellant, v. Pete GEREN, Secretary of the Army, United States Army Corps of Engineers, Agency, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

114 Fair Empl.Prac.Cas. (BNA) 303

12 Cal. Daily Op. Serv. 536

2012 Daily Journal D.A.R. 14

666 F.3d 599

95 Empl. Prac. Dec. P 44,392

Devon S. SHELLEY, Plaintiff–Appellant,

v.Pete GEREN, Secretary of the Army, United States Army Corps of Engineers, Agency, Defendant–Appellee.

No. 10–35014.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 4, 2010.Filed Jan. 12, 2012.

David M. Rose, Minnick–Hayner, P.S., Walla Walla, WA, for the plaintiff-appellant.

James A. McDevitt, United States Attorney, Frank A. Wilson, Assistant United States Attorney, Spokane, Washington; William E. Edwards, United States Army Corps of Engineers, Kansas City, MO, for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Robert H. Whaley, District Judge, Presiding. D.C. EDWA No. 08–cv–5045–RHW.Before: BETTY B. FLETCHER and JAY S. BYBEE, Circuit Judges, and CLAUDIA WILKEN, District Judge.^*Opinion by Judge WILKEN; Partial Concurrence and Partial Dissent by Judge BYBEE.

OPINION

WILKEN, District Judge:

Plaintiff–Appellant Devon Scott Shelley appeals the district court's grant of summary judgment in favor of Defendant–Appellee Pete Geren, Secretary of the Army and the United States Army Corps of Engineers (collectively, the Corps). Shelley sued the Corps for violating the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., by failing to interview him and rejecting his applications for two promotions. We have jurisdiction pursuant to 28 U.S.C. § 1291 to consider Shelley's appeal. We find that Shelley presented a prima facie case of age discrimination and evidence of pretext sufficient to create a material dispute as to whether age-related bias was the “but-for” cause of the Corps' failure to interview and promote him. The district court's grant of summary judgment in favor of the Corps is reversed.

BACKGROUND

In 2005, the Corps sought to fill a GS–14 Supervisory Procurement Analyst position in the Contracting Division at its Kansas City District. The position was also known as Chief of Contracting. The Corps pursued a two-step hiring process, in which it advertised an opening for a 120–day temporary position, and then announced a formal process to hire a permanent Chief of Contracting.

An email announcement of the 120–day position was made on October 3, 2005, and courtesy copies were sent to Major Kelly Butler and Regional Contracting Chief Joseph Scanlan. The announcement explained that recruitment for the permanent position would begin in the near future. Applicants were instructed to email or fax their current resume/application, copies of their two most recent performance appraisals, proof that they had completed the educational requirements, and proof of eligibility for a Critical Acquisition Position.

Shelley applied for the 120–day position. At the time, he had been serving as Assistant Chief of the Contracting Division for the Walla Walla District, a GS–13 position, for over a year. In that position, Shelley supervised, coordinated, and managed the work of Team Leaders. Shelley was supervised by Connie Oberle, the Chief of Contracting at Walla Walla. He held a master's degree in business administration, had twenty-nine years of experience in contracting (twenty-six of which were with the Corps), and had received numerous awards for his work. In 2005, Shelley had received a “Special Act Award” for “major acquisition accomplishments and acquisition research [and] policy.” In 2003, he had received a Bronze Star Medal for exceptionally meritorious acquisition service as a Contracting Officer with the Corps while deployed to the Afghanistan Area Office. He was born in 1951 and was fifty-four years old at the time of his application for the 120–day position.

Butler served as the selecting official for the 120–day position. She received about nine resumes and rated them according to the criteria from the position announcement, which she summarized as “[b]asically their experience.” No other officials reviewed the resumes for the 120–day position. Butler also spoke with the applicants' references.

Butler testified that Oberle gave a negative reference for Shelley. She stated, “I called Connie for a reference for [Shelley]. And, really, Connie's reference is why we did not choose [Shelley].” Butler explained, “When I get a big No feeling from the supervisor, that sends a red flag.” Later, Butler changed her testimony, stating that Oberle's reference was “one of the reasons we did not choose [Shelley].” Oberle, however, denied ever having spoken with Butler regarding Shelley's qualifications. Oberle testified that she spoke with Scanlan and informed him that Shelley was interested in the 120–day position, and that the job would be a “wonderful opportunity for him.”

Butler consulted about the applicants with Colonel Michael Rossi, Commander of the Kansas City District, and Steve Iverson, Deputy District Engineer for Project Management for the same district. They agreed that Vince Marsh should be hired. Marsh was serving as a Supervisory Procurement Analyst and Chief of the Business Management Division in Huntsville, Alabama, a GS–14 position, and had been serving in the position for more than a year. He supervised approximately fifteen employees and served as Director of Contracting for the Business Management Division “as requested.” In his prior position, as Business Operations Manager at the United States Army Contracting Command in Europe, Marsh had also served as Director of Contracting “as requested,” supervising seventy-five contract specialists on those occasions. He was forty-two years old at that time, born in 1963. He had twenty years of experience in contracting (fourteen in contracting positions and six in procurement positions). He had been with the Corps for less than two years. The most recent award listed on Marsh's resume was a “Sustained Superior Performance Award” he had received in 2002, before joining the Corps.

Butler interviewed Marsh for the position. There is no evidence that she interviewed other candidates.

On November 2, 2005, Kevin Brice, Business Management Division Chief, sent an email seeking approval to hire Marsh for the 120–day position. Brice stated that he and Rossi recommended Marsh for the position, that Scanlan had participated in the selection process, and that Butler believed Marsh was Scanlan's top pick. Marsh's selection was approved.

Scanlan knew Shelley and was aware that Shelley was in his fifties. Scanlan had served as a superior to Shelley, and had worked with him for about six years. He was familiar with Shelley's credentials and experience working for the Corps. He knew that, as Assistant Chief of Contracting for the Walla Walla District, Shelley had, at various times, served as Acting Chief of Contracting when Oberle was absent. Scanlan expressed confidence in Shelley's performance of his duties as Acting Chief of Contracting and testified that both technically and professionally Shelley was a good contracting officer.

At the time Scanlan supported Marsh for the 120–day position, he knew Marsh only by reputation. They had met at a social event for the Army Contracting Command in Germany. Scanlan's belief that Marsh was the best candidate for the 120–day position was not based on any personal experience working with him. Scanlan, however, told Butler, Brice, Iverson, Rossi and Kevin Bond, District Counsel Chief, who later joined the selection panel for the permanent position, that he had worked with Marsh in Germany, and that he believed Marsh would do very well in the 120–day position.

Shelley learned that he was not selected for the 120–day position on or about November 4, 2005.

Meanwhile, on October 24, 2005, the permanent position and job description had been announced, and the Corps began accepting applications. The selection plan called for a panel of five members to review applications. The panel members were Scanlan, Brice, Rossi, Bond, and Mary Parks, Chief Contracting Specialist. Scanlan, Brice and Rossi had all participated in the hiring decision for the 120–day position. Rossi was assigned to chair the panel.

The selection plan identified four criteria on which to screen applicants for interviews: technical competency, management skills, leadership and teamwork. On each criterion, the applicants were to be evaluated as “outstanding,” “fully successful,” or “minimally acceptable.” Possession of a graduate level degree was a factor in ranking a candidate as outstanding for technical competency. A factor to be considered with regard to management skills was supervision of over thirty employees.

Oberle testified that, around the time the hiring process was taking place, Scanlan and Brice requested from the contracting chiefs information about projected retirement dates for employees in their districts and divisions. Scanlan did not recall asking his chiefs for information on retirement eligibility. He admitted, though, that in 2004 or 2005 he had requested, from the districts, certain data which, at that time, was provided in a spreadsheet entitled Capable Workforce Matrix. Although the matrix did not include the names of the employees, it included information such as job titles, grade levels, number of employees in a particular position in a division, as well as their anticipated retirement dates. The example in the record of this matrix for the Walla Walla Contracting Division is dated March 21, 2006, but apparently the same format was used in 2004 and 2005. It is clear from the 2006 version of the matrix for the Walla Walla Contracting Division that it would be a simple matter to deduce the names of the incumbents from the position titles within the division.

Thirty-three individuals applied for the permanent position, including Shelley, Marsh, and Oberle. The panel members independently evaluated the applicants as outstanding, fully successful, or minimally acceptable,...