Vasser v. McDonald, Civil Action No.: 14–0185 RC

• Decision Date: 04 November 2014
• Docket Number: Civil Action No.: 14–0185 RC
• Citation: 72 F.Supp.3d 269
• Parties: Vivian Vasser, Plaintiff, v. Robert McDonald, Secretary of the United States Department of Veterans Affairs, Defendant.
• Court: U.S. District Court — District of Columbia

72 F.Supp.3d 269

Vivian Vasser, Plaintiff

v.Robert McDonald, Secretary of the United States Department of Veterans Affairs¹ , Defendant.

Civil Action No.: 14–0185 RC

United States District Court, District of Columbia.

Signed November 4, 2014

Lisa Alexis Jones, Lisa Alexis Jones, Esq., New York, NY, for Plaintiff.

John Cuong Truong, U.S. Attorney's Office, Washington, DC, for Defendant.

Re Document No.: 9

MEMORANDUM OPINION

Denying Defendant's Motion to Dismiss for Improper Venue or, Alternatively, to Transfer

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Plaintiff Vivian Vasser (“Vasser”) brings suit against Defendant Robert McDonald, Secretary of the United States Department of Veterans Affairs (“VA”), alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621. Before the Court is Defendant's Federal Rule of Civil Procedure 12(b)(3)motion to dismiss for improper venue or, alternatively, to transfer the case to the Middle District of Florida (Tampa Division). For the reasons set forth below, the Court will deny Defendant's motion to dismiss for improper venue and decline to transfer the case to the Middle District of Florida.

II. FACTUAL ALLEGATIONS

Vasser, an African–American woman, is a licensed social worker and supervisory social worker/team leader, GS–12/9, at the Eastside Vet Center in Maple Heights, Ohio. Am. Compl., ECF No. 5, at ¶ 6. Vasser began her career in the United States Military in 1976, and she continued to serve in the United States Army as a clinical social worker starting in 1997 and as the Regional Director of Psychological Health starting in 2009. Id. ¶ 7. Beginning in 1993, Vasser also began working as a clinical coordinator for the Readjustment Counseling Service (“RCS”) at the VA, and she achieved the role of supervisory social worker/team leader in 2000. Id. ¶ 8. In 2006, Vasser was appointed to the RCS Social Worker Professional Standards Board. Id. ¶ 9.

RCS is composed of seven regions across the United States, and each region is supervised by a regional manager, who is assisted by a deputy regional manager. Id. ¶ 11. Dr. Alfonso Batres (“Dr. Batres”), a Hispanic male and the RCS Chief Officer, supervised the regional managers from the VA's headquarters in Washington, D.C., during the alleged discriminatory events.Id. ¶ 12. Vasser alleges that Dr. Batres had sole hiring authority for RCS regional manager positions and served as the approving authority for RCS deputy regional manager positions. Id. In RCS's thirty-four year history, only one African–American woman was hired as a regional or deputy regional manager, and that individual filed and eventually settled an Equal Employment Opportunity (“EEO”) complaint against Dr. Batres based upon alleged racial and gender discrimination. Id. ¶ 14. As a result of that complaint, Dr. Batres allegedly told at least one unnamed RCS regional manager that he would never hire another African–American woman as a regional or deputy regional manager. Id.

Beginning in 2007, Vasser applied for three regional manager GS–13 and GS–14 positions and three deputy regional manager GS–13 positions within RCS at various locations throughout the United States—including Dallas, Texas; Towson, Maryland; St. Louis, Missouri; and Bay Pines, Florida—but she was not selected for promotion to any of the positions through the VA Healthcare Systems Merit Promotion Plan, which governs the VA's merit promotions. Id. ¶¶ 16, 17–19. Under the Merit Promotion Plan, competitive promotions require certain employment practices, such as the convening of panels and assessments of a candidate's background using Knowledge, Skills, Abilities and Other Characteristics (“KSAOs”). Id. According to the applicable Merit Promotion Plan, the selecting official must use performance-based interviewing and must indicate the “best qualified” candidates on the promotion certificate. Id. The Plan also dictates that when there are more than eight qualified candidates for promotion, a panel must be convened. Id. These panels are then required to evaluate candidates on the extent to which they possess the KSAOs relevant to the position, and to ascertain the relevancy of the candidate's background to the KSAOs. Id. If a panel is not convened, the selecting official must explain the method of evaluation and basis for selection. Id. A determination of “best qualified” candidates must be based upon a “procedure that is job-related and applied fairly and consistently.” Id.

The applications at issue in the instant litigation mainly involve the Bay Pines, Florida, vacancies. In September 2008, Vasser applied for a position as deputy regional manager in Bay Pines under Vacancy Announcement No. MPA 08–531. Id. ¶ 18. Vasser was certified and interviewed by Regional Manager John Walker, who is an African–American male. Id. Walker advised Vasser that he would recommend her for selection, and he even encouraged her to begin looking for a residence in Florida. Id. On January 29, 2009, a human resources representative told Vasser that the vacancy announcement had been “cancelled.” Id. Walker informed Vasser that his supervisor and the deciding official, Dr. Batres, would “never” approve Vasser's promotion.² Id. After learning this, Vasser filed an EEO complaint of discrimination for her non-promotion under this vacancy announcement. Id.

On April 27, 2009, another announcement, No.2009–1996–AA, was issued by RCS for the GS–13 deputy regional manager position in Bay Pines with a closing date of May 28, 2009. Id. ¶ 19. The job description for the new announcement was identical to the description of the prior cancelled position for which Vasser had been deemed qualified and interviewed. Id. The announcement contained six KSAOs and required candidates to address these rating factors, and failure to address the factors could result in a candidate receiving a lower rating during the evaluation process.Id. ¶ 20.

In May 2009, Vasser submitted an application for promotion under this new vacancy announcement. Id. ¶ 21. In addition to her other supporting documents, she submitted a thirteen-page response to the KSAOs rating factors. Id. Wayne Plummer, a Caucasian male, also applied for promotion under the Bay Pines vacancy announcement. Id. ¶ 22. Plummer began his career with RCS as a readjustment therapist in 2003, and in 2007 he was promoted to supervisory social worker/team leader. Id. Vasser alleges that Plummer did not address the KSAOs rating factors in his application, nor did he provide any supporting materials other than academic transcripts. Id. On June 2, 2009, eleven candidates, including Vasser and Plummer, were certified as eligible for promotion. Id. ¶ 23. At this point, Walker was on medical leave and Dr. Batres allegedly had assumed control of the hiring process for this Bay Pines vacancy announcement. Id. ¶ 24.

In violation of Merit Promotion Plan Article 22, Vasser alleges that no panels were convened, nor were any ratings established. Id. ¶ 25. On June 2, 2009, four of the eligible candidates, including an African–American woman other than Vasser, were referred as “best qualified” for the position. Id. ¶ 26. On July 16, 2009, a Personnel Action requesting the promotion of Plummer to the deputy regional manager position was submitted. Id. ¶ 27. On August 17, 2009, Dr. Batres formally selected Plummer for the position without submitting explanations for how the ratings and selection were decided, as the Merit Promotion Plan requires. Id. ¶ 28. On November 10, 2009, Vasser filed another EEO complaint of discrimination for her non-promotion under this vacancy announcement. Id. ¶ 29.

Around late 2010 to early 2011, RCS announced an open GS–14 regional manager position in the mid-Atlantic region. Id. ¶ 30. Vasser, then a GS–12, applied because she had already been certified as eligible for GS–14 positions. Id. However, the vacancy was never filled despite the presence of at least two qualified candidates in Vasser and Joann Thompson, another African–American woman, and no new vacancy announcement for this position has been issued since 2011. Id. Thompson filed complaints of discrimination against Dr. Batres for his failure to promote her to deputy regional manager in Towson, Maryland, and her civil action is pending in the United States District Court for the District of Columbia. Id.

Turning back to the Bay Pines positions, by 2010 John Walker had retired due to his medical condition, and in late 2010 a new vacancy announcement for the Bay Pines regional manager position was announced. Id. ¶ 32. Vasser alleges that Dr. Batres was again the selecting official, and the position was announced as GS–14 nationwide for all current, permanent VA employees. Id. Vasser was deemed qualified and certified as a GS–14 in January 2011 based on her experience and education. Id. In August 2011, however, Dr. Batres “decided not” to fill the position, despite the presence of at least one qualified candidate in Vasser, leading Vasser to file another EEO complaint for discrimination for her non-promotion to this vacancy. Id. ¶ 34.

On March 30, 2011, the Bay Pines regional manager position was announced again under Vacancy No. 454888 as a GS–14 position open to all United States citizens. Id. ¶ 35. According to Dr. Batres, the announcement was made nationwide to attain a larger selection pool, but the announcement was “closed” when Vasser was certified for the second time as a GS–14 in April 2011.Id. ¶¶ 35–36. Vasser filed an EEO complaint of discrimination for this non-selection based on race, gender, and retaliation for her previous EEO complaints against Dr. Batres. Id. ¶ 38.

Vasser further alleges that by the spring of 2011, Dr. Batres had decided to hire Sarita Figueroa, a Latina female, for the Bay Pines regional manager position. Id. ¶ 37. In accordance with the alleged plan, on August 11, 2011, Dr. Batres—with...