Bias v. Wilkie

• Docket Number: CIV 20-0173 JB/LF
• Decision Date: 29 July 2022
• Parties: RICHARD BIAS, Plaintiff, v. ROBERT WILKIE, Secretary, Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of New Mexico

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RICHARD BIAS, Plaintiff, v. ROBERT WILKIE, Secretary, Department of Veterans Affairs, Defendant.

No. CIV 20-0173 JB/LF

United States District Court, D. New Mexico

July 29, 2022

Donald G. Gilpin Christopher P. Machin The Gilpin Law Firm, LLC Albuquerque, New Mexico Attorneys for the Plaintiff

Alexander M.M. uballez united states Attorney Christine Hyojin Lyman Assistant united states Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Defendant

MEMORANDUM OPINION^[1]

THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment and Supporting Memorandum, filed August 10, 2021 (Doc. 30)(“MSJ”). The Court held a hearing on September 21, 2021. See Clerk's Minutes at 1, filed September 21, 2021 (Doc. 39). The primary issues are: (i) whether Defendant Department of Veteran's Affairs (“VA”) discriminated against Plaintiff Richard Bias on the basis of race by (a) requiring Bias to work outside his job description or (b) declining to interview Bias for a vacant position; and (ii) whether the VA retaliated against Bias for filing an Equal Employment Opportunity (“EEO”) Complaint in 2011 by (a) requiring him to work outside his job description or (b) declining to interview Bias for a vacant position. The Court concludes that: (i) the VA did not discriminate against Bias by (a) having him work outside his job description or (b) declining to interview him for a vacant position; and (ii) the VA did not retaliate against Bias by (a) having him work outside his job description, or (b) declining to interview Bias for a vacant position. Consequently, the Court will grant the MSJ.

FACTUAL BACKGROUND

The Court takes its facts from the MSJ; the Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment, filed August 23, 2021 (Doc 31)(“Response”); and the Defendant's Reply to Plaintiff's Response to its Motion for Summary Judgment filed September 7, 2021 (Doc. 34)(“Reply”). Most of the facts are undisputed. The Court states the undisputed material facts in the text. See Fed.R.Civ.P. 56. The Court specifically notes the facts that are disputed, or purportedly disputed, in the footnotes.

1. The VistA Printer Installations.

In 2014, the VA employed Bias as an Information Technician Specialist (“ITS”), at the GS-9 level.^[2] See MSJ ¶ 1, at 6 (asserting this fact); Response ¶ 1, at 1 (admitting this fact). On August 6, 2014, Debby Rodgers, an IT Specialist for the VistA Applications team, emailed Bias and three other IT Specialists asking if any of them were “up to the challenge” of setting up a VistA printer for facility personnel in Albuquerque, New Mexico. Email from Debby Rodgers to Claudia J. Lucero, Raymond M. Ferguson, Richard Bias, and Andrea M. Griffen at 2 (dated 9:47 a.m., August 6, 2014), filed August 10, 2021 (Doc. 30-7)(“9:47 a.m., August 6, 2014, Email”). Rodgers offered to assist the specialists in setting up the printer and stated that she could complete the task by herself if necessary. See 9:47 a.m., August 6, 2014, Email; MSJ ¶ 9, at 4 (asserting this fact); Response ¶ 9, at 2 (admitting this fact). Approximately one hour later, one of the specialists, writing on behalf of the group, responded and said: “We want to set up the printer.” Email from Claudia Lucero to Debby Rodgers, Raymond M. Ferguson, Richard Bias, and Andrea M. Griffen at 2 (dated 10:43 a.m., August 6, 2014). See MSJ ¶ 10, at 4-5 (asserting this fact); Response ¶ 10, at 2 (admitting this fact). On or about August 12, 2014, Bias and the three other IT Specialists successfully installed the printer. See MSJ ¶ 12, at 5 (asserting this fact); Transcript of Deposition of Richard Bias, taken July 14, 2021, at 37:1-16, filed August 10, 2021 (Doc. 30-6)(“Bias Depo.”); Response ¶ 12, at 2 (admitting this fact). Bias voluntarily installed the printer. See MSJ ¶ 14, at 5 (asserting this fact); Bias Depo. at 38:14-25.^[3] See Response ¶ 14, at 2 (admitting this fact in part and disputing this fact in part). After installing the printer for Rogers, Bias installed at least two or three additional VistA printers during August 2014. See Response ¶ 36, at 4 (asserting this fact); Bias Depo. at 39:5-25; Reply ¶ 36, at 3 (admitting this fact).

2. The ITS GS-11/12 Position.

On August 8, 2014, Bias applied for a vacant ITS GS-11/12 position, shortly after the VA issued an ITS GS-11/12 vacancy announcement. See MSJ ¶¶ 18-19, at 5 (asserting this fact); Declaration of Gregory Moore, ¶ 2, at 1, filed August 10, 2021 (Doc. 30-9)(“Moore Decl.”); Response ¶¶ 18-19, at 2 (admitting this fact). Bias did not qualify for the position at the GS-12 level, because he did not have one year of experience at the GS-11 level. See MSJ ¶ 23, at 6 (asserting this fact).^[4] See Response ¶ 23, at 3 (admitting this fact in part and disputing this fact in part). See 5 C.F.R. §300.604(a)(“Candidates for advancement to a position at GS-12 and above must have completed a minimum of 52 weeks in positions no more than one grade lower (or equivalent) than the position to be filled.”).

After the ITS GS-11/12 vacancy announcement closed, the VA's Human Resources office issued two candidate referral lists^[5] identifying applicants qualified for GS-11 positions (“GS-11 certificate”) for applicants qualified for GS-12 positions (“GS-12 certificate”). See MSJ ¶ 20, at 5-6 (asserting this fact); Moore Decl. ¶ 3, at 1; Response ¶ 20, at 2 (admitting this fact). Four individuals were impaneled as a selection committee to “review applications, interview candidates, and make selection recommendations.” MSJ ¶ 24, at 6 (asserting this fact); Moore Decl. ¶ 6, at 1. See Response ¶ 24, at 3 (admitting this fact). Gregory Moore, the Chief of Business, Critical Systems, would supervise the selected applicants and chaired the committee. See MSJ ¶ 26, at 6 (asserting this fact); Moore Decl. ¶ 6, at 1; Response ¶ 26, at 3 (admitting this fact). The committee reviewed all applications to assess each applicants' qualifications and current positions. See MSJ ¶ 28, at 6 (admitting this fact); Moore Decl. ¶ 6, at 1; Response ¶ 28, at 3 (admitting this fact). After reviewing the applicants, Moore decided to interview only candidates on the GS-12 level. MSJ ¶ 29, at 6 (asserting this fact); Moore Decl. ¶ 7, at 1.6 See Response ¶ 29, at 3 (denying this fact). Moore stated that he did not interview GS-11 candidates, because he was “seeking highly competent individuals who could function at a high level with little or no direct supervision.” MSJ ¶ 31, at^[6](asserting this fact); Moore Decl. ¶ 7, at 1.^[7] See Response ¶ 29, at 6 (denying this fact). Moore stated that the responsibilities for the vacant ITS GS-11/12 roles “were more complex than the typical IT positions at the VA facility” and that the positions required the person to have “knowledge and experience supporting, among other things, the management and oversight of VistA and the installation of VistA hardware upgrades.” MSJ ¶ 32, at 6-7 (asserting this fact). See Moore Decl. ¶ 7, at 1.^[8] See Response ¶ 32, at 3 (disputing this fact). Moore discounted the candidates on the GS-11 certificate, because he “honestly believed” that the candidates on the GS-12 certificate were the best qualified applicants. MSJ ¶ 33, at 7 (asserting this fact); Moore Decl. ¶ 8, at 1-2.^[9] See Response ¶ 33, at 4 (disputing this fact). Moore did not know Bias, and “knew nothing about [Bias'] race, ethnicity, skin color, or prior EEO activity” when he decided to discount candidates on the GS-11 certificate. MSJ ¶ 35, at 7 (asserting this fact).^[10] See Response ¶ 35, at 4 (disputing this fact).

3. The Employment Discrimination Complaint to the Office of Resolution Management.

On or about September 2, 2014, a Veterans Integrated Services Network (“VISN”) Classification Specialist reclassified Bias' job position. See MSJ ¶ 16, at 5 (asserting this fact); Harris Decl. ¶ 8, at 2; Response ¶ 16, at 2 (admitting this fact). The new classification provided that twenty percent of the role's responsibilities include “set[ting] up, operat[ing], monitor[ing] computer systems and peripheral equipment such as CD read/write devices, printers, scanners, and external modems . . . [and] perform[ing] other duties as assigned.” MSJ ¶ 17, at 5 (asserting this fact).^[11] See Response ¶ 17, at 2 (denying this fact).

On October 9, 2014, Bias filed a Complaint of Employment Discrimination with the VA Office of Resolution Management (“ORM”), which he amended subsequently amended on January 8, 2015. See Complaint of Employment Discrimination, filed August 10, 2021 (Doc. 303); ORM's Notice of Amendment, filed August 10, 2021 (Doc 30-5)(“Amended ORM Notice”); Response ¶ 4, at 1 (admitting this fact). The Amended ORM Notice stipulates that an investigator will examine:

A) Whether complainant was discriminated against based on age, color (dark), race (Black), and reprisal (prior EEO activity) when on or about August 12, 2014, he was required to set up VistA printers and grant “file man access” to employees.

B) Whether complainant was discriminated against based on age, color (dark), race (Black), and reprisal (prior EEO activity) when on or about September 2, 2014, he was denied a desk audit for his position.

C) Whether complainant was discriminated against based on age, color (dark), race (Black), and reprisal (prior EEO activity) when on September 24, 2014, he was not interviewed or selected for the position of Information Technology Specialist, GS-11/12, under Announcement No. 1184700.

D) Whether complainant was discriminated against based on age, color (dark), race (Black), and reprisal (prior EEO activity) when on December 19, 2014, he was given a performance bonus (cash award) that was a lesser amount than his co-workers received.

M...