Obermeyer v. Vilsack
| Decision Date | 13 October 2010 |
| Docket Number | No. CIV 09–0737 JB/CEG.,CIV 09–0737 JB/CEG. |
| Citation | 760 F.Supp.2d 1232 |
| Parties | Kay OBERMEYER, Plaintiff,v.Tom VILSACK, Secretary, U.S. Department of Agriculture, Defendant. |
| Court | U.S. District Court — District of New Mexico |
OPINION TEXT STARTS HERE
Jeffrey A. Dahl, Keleher & McLeod, P.A., Albuquerque, NM, for Plaintiff.Phyllis A. Dow, United States Attorney's Office Civil, Albuquerque, NM, for Defendant.
THIS MATTER comes before the Court on the Defendant's Motion for Summary Judgment and Memorandum in Support, filed July 20, 2010 (Doc. 29)(“Motion”). The Court held a hearing September 16, 2010. The primary issue is whether Plaintiff Kay Obermeyer has established a question of material fact whether the Defendant discriminated against her because of her disability in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 701–794a. The Court finds that Obermeyer has failed to establish a genuine question of material fact whether the Defendant discriminated against her and grants the Defendant's Motion for Summary Judgment.
Obermeyer assets that she is legally deaf and is a handicapped individual within the meaning of 29 U.S.C. § 706(8), and is disabled pursuant to 42 U.S.C. § 12102.1 See Complaint, filed July 27, 2009 (Doc. 1). She is now on long-term disability retirement and has been since May 2009. See, e.g., Deposition of Kay Obermeyer at 5:23–6:14 (taken June 8, 2010), filed July 20, 2010 (Doc. 29–1). Obermeyer's most recent position with the United States Department of Agriculture, Forest Service (“FS”), was as an Accounting Technician, GS–0525–07, at the Albuquerque Service Center (“ASC”), in Albuquerque, New Mexico. See, e.g., Obermeyer Depo. at 15:15–16. Before her reassignment to the ASC in 2005, Obermeyer was a Financial Assistant, GS–0503–07, for the FS's Geospatial Service and Technology Center (“GSTC”), in Salt Lake City, Utah. See, e.g., Obermeyer Depo. at 16:21; id. at 20:21–21:1. At the GSTC, Charlene V. McDougald was a Budget Officer and Obermeyer's first-line supervisor. See, e.g., Declaration of Charlene V. McDougald ¶¶ 2–3, at 1 (executed July 19, 2010), filed July 20, 2010 (Doc. 29–2). Roberta “Robin” Carroll was Obermeyer's Third Line Supervisor while she worked at GSTC. See, e.g., Affidavit of Roberta “Robin” Carroll ¶ 3, at 2 (executed June 15, 2007), filed August 24, 2010 (Doc. 36–3).
Obermeyer had applied for a Budget and Accounting Analyst position in April 2003, and she was on the Certificate of Candidates. See, e.g., McDougald Aff. ¶ 17, at 6; Affidavit of Pam W. Padilla ¶ 7, at 3 (executed June 4, 2007), filed August 24, 2010 (Doc. 36–1). Obermeyer previously filed an Equal Employment Opportunity (“EEO”) Complaint about another matter. See Complaint ¶ 10, at 2; Answer ¶ 10, at 3, filed October 27, 2009 (Doc. 6).
A Budget Analyst, GS–0560–07/09, position with GSTC was classified and advertised in July 2006. See, e.g., Declaration of Roberta “Robin” Carroll ¶ 5, at 1–2 (executed July 20, 2010), filed July 20, 2010 (Doc. 29–3). Obermeyer applied for the Budget Analyst position in August 2006. See, e.g., Carroll Decl. ¶ 4, at 1; McDougald Decl. ¶ 4, at 1. Obermeyer was deemed to be a promotion-eligible candidate and qualified for the position. See, e.g., Carroll Aff. ¶ 17, at 2; McDougald Decl. ¶ 9, at 2. The automated staffing and classification system, AVUE, generated listings of twenty-four qualified candidates for the position. Obermeyer's name was on the lists for both the GS–7 and GS–9 levels. See, e.g., McDougald Decl. ¶ 9, at 2.
After the applications were submitted, a three-person panel was convened in accordance with GSTC practice (“Panel”). See, e.g., Carroll Decl. ¶ 7, at 2; McDougald Decl. ¶ 6, at 2. As the supervisor of the Budget Analyst position, McDougald served as Panel Evaluation Team Chairperson. See, e.g., Carroll Decl. ¶ 10, at 3; McDougald Decl. ¶ 6, at 2. She was also the Recommending Official. See, e.g., McDougald Decl. ¶ 5, at 1. Marcia A. Thomas, Administrative Officer, was the Selecting Official, and did not participate in the rating and ranking of the candidates. See, e.g., McDougald Decl. ¶ 5, at 1; Affidavit of Marcia A. Thomas ¶¶ 11, 15, at 5, 6 (executed June 11, 2007), filed July 20, 2010 (Doc. 29–6). Carroll was the Approving Official. See, e.g., Carroll Decl. ¶ 6, at 2; McDougald Decl. ¶ 5, at 1. Randy Miles, Administrative Officer, United States Geological Survey, served as a Panel member. See, e.g., McDougald Decl. ¶ 7, at 2; Declaration of Randy Miles ¶¶ 1–3, at 1 (executed July 19, 2010), filed July 20, 2010 (Doc. 29–4). Bradley K. Losito, then Information Technology Specialist in the Program Coordination Unit of GSTC, also served as a Panel member. See, e.g., Declaration of Bradley K. Losito ¶ 11, at 3 (executed July 20, 2010), filed July 20, 2010 (Doc. 29–5); McDougald Decl. ¶ 7, at 2.
The Panel met on two days: August 24 and 31, 2006. See, e.g., Carroll Decl. ¶ 8, at 2.2 Pam Padilla, then Human Resources Specialist with GSTC, assisted the Panel members, instructing them on the manner in which the Panel should be conducted and, after the scoring, adding up the scores and witnessing the discussions between the Panel members in reaching a consensus on the final scores. See, e.g., McDougald Decl. ¶¶ 6, 8, at 2; Thomas Aff. ¶ 13, at 6.3 Padilla explained the rating and ranking process, which involved three criteria for the GS–7 level and six for the GS–9 level. See, e.g., Losito Decl. ¶ 6, at 2; McDougald Decl. ¶ 10, at 3.4 Douglas Johnson, a member of the Human Resource Action Team, also participated on the Panel, but did not score the candidates. See, e.g., Losito Decl. ¶ 6, at 2; McDougald Decl. ¶ 8, at 2.
The maximum possible score for the GS–7 level was of 45 and for the GS–9 level was 90. See, e.g., McDougald Decl. ¶ 10, at 3. Each Panel member independently rated the candidates on their Knowledge, Skills, and Abilities (“KSA”). See, e.g., Losito Decl. ¶ 8, at 2; McDougald Decl. ¶ 11, at 3; Miles Decl. ¶ 9, 2. 5 The Panel then wrote the candidates' scores on a board, and collectively discussed any significant differences in scores for the highest ranking candidates and reached a consensus for the final scores. See, e.g., Losito Decl. ¶ 9, at 2; McDougald Decl. ¶ 11, at 3; Miles Decl. ¶ 10, at 2.
Out of a possible maximum score of 45 for the GS–7 level, the Panel assigned the top three candidates a score of 45, and the Panel assigned Obermeyer a score of 37, ranking her at about number 9. See, e.g., McDougald Decl. ¶ 10, at 3; Table of Scores, filed July 20, 2010 (Doc. 29–7). Out of a possible maximum score of 90 for the GS–9 level, the Panel assigned the top three candidates scores of 84, 82, and 82, and the Panel assigned Obermeyer a score of 50, ranking her at about number 10. See, e.g., McDougald Decl. ¶ 10, at 3; Table of Scores. There were significant discrepancies between some of the scores of the various individuals who were rated. See Padilla Aff. ¶ 18–19, at 6–7.6
The Panel members selected the top three candidates for each grade level, and they decided someone should telephone the supervisors and references for those applicants, which McDougald did on September 1, 2006. See, e.g., McDougald Decl. ¶ 12, at 4. McDougald did not check Obermeyer's references or supervisors in conjunction with her application for the position, because she was not in the top three. See, e.g., Affidavit of Charlene V. McDougald ¶ 12, at 5(executed June 11, 2007), filed August 24, 2010 (Doc. 36–2). McDougald then prepared a memorandum for Thomas, explaining the means of recruitment for the Budget Analyst position, the rating/ranking process, Padilla's role in the process, and the strengths and weaknesses of the top three candidates recommended for each level. See, e.g., McDougald Decl. ¶ 13, at 3; Announcement: ADS06–WO–UT–GSTC–001, filed July 20, 2010 (Doc. 29–8).
McDougald and Thomas interviewed the top three candidates for each level. See, e.g., McDougald Decl. ¶ 14, at 3–4; Thomas Aff. ¶ 15, at 6. Based on the rating/ranking results, reference/supervisor checks, and the interviews, McDougald recommended that Kaylee Ly be selected for the Budget Analyst position at the GS–9 level. See, e.g., Carroll Decl. ¶ 12, at 3; McDougald Decl. ¶ 15, at 4. Thomas selected Ly, and Carroll approved the selection. See, e.g., Carroll Decl. ¶ 12, at 3; McDougald Decl. ¶ 15, 4.
Ly was already a GS–9 Budget Analyst on the Angeles National Forest and had a degree in accounting. See, e.g., Carroll Decl. ¶ 13, 3; McDougald Decl. ¶ 14, 4. Ly applied for only the GS–9 position and was rated only on that position. See, e.g., Padilla Aff. ¶ 19, at 7.7 Ly does not have a physical disability or prior EEO activity. See, e.g., Padilla Aff. ¶ 15, at 6. After accepting the Budget Analyst position, Ly vacated the Budget Analyst position, and the position was re-advertised, and no further selection was made. See, e.g., Padilla Aff. ¶ 19, at 7.8
The Defendant alleges, and Obermeyer denies, that Obermeyer's hearing impairment and prior EEO activity were not factors in her not being selected for the position at issue. See, e.g., Motion ¶ 35, at 8 (citing Carroll Decl. ¶¶ 16–17, at 3–4; Losito Decl. ¶ 12, at 3; McDougald Decl. ¶¶ 17–18, at 4; Miles Decl. ¶ 13, at 2–3; Thomas Aff. ¶ 16, at 7); Response ¶ 3, at 2. 9 McDougald and Thomas were aware of Obermeyer's hearing disability and her previous EEO Complaint. See, e.g., McDougald Aff. ¶ 4, at 2; Thomas Aff. ¶¶ 4, 6, at 2–3. Carroll and Losito were aware of Obermeyer's hearing impairment, and Carroll was aware Obermeyer applied for the Budget Analyst position. See, e.g., Carroll Aff. ¶¶ 4, 6, at 2; Affidavit of Bradley K. Losito ¶ 5, at 13 (executed June 6, 2007), filed August 24, 2010 (Doc. 36–1). Thomas informed Carroll that Obermeyer would be “slow” in performing the duties of the Budget Analyst position. E.g., Carroll Aff. ¶ 21, at 2. McDougald and Thomas had made...
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...policy because Plaintiffs fail to allege, let alone demonstrate, that they are victims of the alleged policy. See Obermeyer v. Vilsack, 760 F. Supp. 2d 1232, 1249 (D.N.M. 2010) ("Direct evidence is that which demonstrates a specific linkbetween the alleged discriminatory animus and the chal......