Velez v. Wormuth
| Docket Number | 7:20-CV-20-D |
| Decision Date | 29 July 2022 |
| Parties | MARIANELA VELEZ, Plaintiff, v. CHRISTINE E. WORMUTH, Secretary of the Anny, Defendant |
| Court | U.S. District Court — Eastern District of North Carolina |
On June 4, 2020, Marianela Velez (“Velez” or “plaintiff”) filed a pro se amended complaint against the Secretary of the Army (“defendant” or “Army”) alleging race, age, and sex discrimination, a hostile work environment based on race age, and sex, and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 arising from her civilian employment for the United States Army [D.E. 13]. On February 16, 2021 the court adopted Magistrate Judge Numbers's report and recommendation concerning defendant's motion to dismiss and dismissed all of Velez's claims except her Title VII failure-to-promote sex discrimination claim [D.E. 30]. On January 18, 2022, defendant moved for summary judgment [D.E 46] and filed a memorandum, a statement of material facts and exhibits in support [D.E. 47-51]. On February 8, 2022, Velez, now proceeding through counsel, responded in opposition [D.E. 52-55]. On March 8, 2022, defendant replied [D.E. 57]. As explained below, the Army did not discriminate against Velez because of her sex when it did not promote her. Thus, the court grants defendant's motion for summary judgment.
Velez is a security assistant in the emergency services division of the 596th Transportation Brigade at the Military Ocean Terminal Sunny Point (“Sunny Point”). See Stmt. Mat. Facts (“SMF”) [D.E. 48] ¶ 1; Resp. Stmt. Mat. Facts ( ) [D.E. 54] ¶ 1. In May 2016, Velez applied for a secretary position, which would have been a promotion for her. See SMF ¶¶ 6-7; Resp. SMF ¶¶ 6-7; Velez Dep. [D.E. 55-4] 4. The person vacating the role was a woman who retired or took another job. See [D.E. 51-6] 2; Velez Dep. at 4; Pekatos Dep. [D.E. 55-7] 7.
The secretary position to which Velez applied is a Grade 6 position. See SMF ¶ 6; Resp. SMF ¶ 6. Under the relevant hiring policies for Grade 6, a selecting official develops a merit-based ranking system to determine the best-qualified candidates and determines whether interviews are necessary to fill the position. See SMF ¶ 4; Resp. SMF ¶ 4. According to the job announcement, the role consists of five primary responsibilities. They are: (1) “[r]eceive calls and visitors and determine[] the nature of the inquiry to refer to appropriate staff member,” (2) “[c]oordinate arrangements for conferences, meetings and travel plans,” (3) “[s]erve as the Government International Merchant Purchase Authorization Card (IMPAC) credit card holder,” (4) “[p]rovide guidance and assistance to office personnel on applicable procedures, directives, etc., related to administrative functions,” and (5) “[m]aintain time and attendance reporting systems.” [D.E. 49-5] 2. The job announcement stated that a competitive candidate would have at least one year of relevant work experience for tasks such as providing clerical support for a Directorate of Operations' office, receiving calls and visitors, providing routine information, answering status requests, and maintaining a supervisor's calendar and suspense records on all correspondence and action documents. See Id. The announcement also stated the position requires a secret security clearance. See Id. at 3.
Spero Pekatos (“Pekatos”), then director of cargo operations at Sunny Point, was the direct supervisor over the vacant secretary position to which Velez applied and was the selecting official in charge of filling the vacancy. See SMF ¶¶ 8-9; Resp. SMF ¶¶ 8-9; Pekatos Dep. at 4,7. On June 8, 2016, the Civilian Personnel Advisory Center sent Pekatos a list often candidates who were “best qualified” to fill the vacant position. See SMF ¶ 9; Resp. SMF ¶ 9; [D.E. 50-2]. Of the ten candidates, four (including Velez) were already employees at Sunny Point. Pursuant to a union contract, those four employees received priority consideration. See SMF ¶¶ 5,10; Resp. SMF ¶¶ 5, 10. The four internal candidates were Damon Barr (“Barr”), Azurminique Dethrow (“Dethrow”), TJ Messier (“Messier”), and Velez. See SMF ¶ 10; Resp. SMF ¶ 10. Pekatos reviewed all the internal candidates' resumes. See SMF ¶ 11; Resp. SMF ¶ 11. Pekatos also obtained references for Barr and Dethrow and spoke with their supervisors; however, he did not do the same for Velez and Messier because Pekatos had heard positive feedback about them in conversations with Velez's and Messier's supervisors. See SMF ¶¶ 12-13; Resp. SMF ¶¶ 12-13.
Pekatos determined that all four candidates were well qualified, and he decided to interview, all of them. See SMF ¶ 14; Resp. SMF ¶ 14; Pekatos Deci. [D.E. 55-5] ¶ 17. In preparation for the interviews, Pekatos formulated three questions to ask the candidates. See SMF ¶ 15; Resp. SMF ¶ 15. The questions were: (1) “[t]ell me about your work experience,” (2) “[t]ell me why you should be selected for this position,” and (3) “[w]hat shift do you currently work and can you work five days a week.” [D.E. 51-5]. Pekatos sought a candidate with strong communications skills, and he was assessing candidates for their ability to speak well in a formal setting, given that the secretary position is often a person's first point of contact with the office. See SMF ¶ 16; Resp. SMF ¶ 16. Pekatos testified that he “was looking for someone who would portray a very strong and confident display in their mannerism, someone who could talk clearly and talk well.” Pekatos Dep. at 12.
On June 8, 2016, Pekatos went to Velez's desk and asked her if she was available for an interview. See SMF ¶ 18; Resp. SMF ¶ 18. Velez agreed to an interview. See SMF ¶ 19; Resp. SMF ¶ 19; Velez Dep. at 5-6. Velez did not say she was unavailable, and she did not ask for more time to prepare. See SMF ¶ 19; Resp. SMF ¶ 19; Velez Dep. at 5-6. In her EEOC complaint, Velez stated that during the interview, Pekatos “asked [Velez] about [her] education, if [she] knew DTS, if [she] had a government purchase credit card and time cards,” and if she spoke Spanish. [D.E. 504] 1. Velez stated she responded in the affirmative to these questions. See Id. In her deposition, Velez testified that Pekatos rushed through the interview, did not take notes during the interview, did not ask Velez about her work experience or why he should select her for the position, and seemed like he already had someone else in mind for the job. See Resp. SMF ¶ 40; Velez Dep. at 7. However, a document listing Pekatos's three questions for Velez'sinterview has notes under each question. As for the work experience question, Pekatos wrote “see resume.” [D.E. 51-5] 1. As for the question concerning why Pekatos should select Velez, Pekatos wrote “moderate responsive” and “informal.” Id.; see Pekatos Deci. ¶ 33 ( ). As for working hours, Pekatos wrote that Velez responded that she currently worked four days per week but could work five days per week. See [D.E. 51-5] 1.
In her EEOC complaint, Velez alleged that Pekatos told her during the interview that she “would be communicating or working with other male members of the directorate” and asked Velez whether she would cry if one of them spoke rudely to her. [D.E. 50-4] 1. In her interrogatory responses, Velez restated what Pekatos allegedly asked her, saying he asked whether she “would cry if any of the workers were to upset me,” without specifying whether the workers were male or female. [D.E. 51-6] 2. In her declaration, Velez states Pekatos asked her if she “would cry if the men [she] would be working with upset [her].” Velez Deel. [D.E. 55-1] ¶ 13. In her deposition, Velez testified that Pekatos asked the question both ways, once referring to male coworkers specifically and once generically. See Velez Dep. at 6-7. Pekatos denies he asked Velez a question like this and instead states that he told Velez and Barr during their interviews that “we have a lot of senior civilians that cry and whine a lot.” Pekatos Deci. ¶¶ 25,28; see SMF ¶¶ 24-25; Resp. SMF ¶¶ 24-25. Pekatos says he remembers saying this because Barr responded he was “used to persons complaining about their packages being late because he worked in the mail room.” Pekatos Deci. ¶28.
Immediately after the interview, Velez saw a coworker, Teresa Sams (“Sams”). See SMF ¶ 27; Resp. SMF ¶ 27. In her EEOC complaint, Velez states that she told Sams what happened to her in the interview and listed Sams as a witness. See [D.E. 50-4] 1-2. But Sams states she does not remember Velez telling her anything specific about the interview and that she and Velez had only “a quick conversation in passing.” [D.E. 50-5] ¶ 11; see SMF ¶ 28; Resp. SMF ¶ 28. Sams does not remember Velez saying that Pekatos asked Velez whether she would cry if male employees made her upset. See [D.E. 50-5] ¶ 12; SMF ¶ 29; Resp. SMF ¶ 29. Sams also does not remember Velez being upset or crying after the interview but stated she “would have noticed or remembered that.” [D.E. 50-5] ¶ 13; see SMF ¶ 29; Resp. SMF ¶ 29. In her deposition, Velez testified she did not remember Sams's name, she considered Sams a coworker and not a friend, she did not remember when after the interview she talked to Sams, and she did not remember what she told Sams about her interview with Pekatos. See SMF ¶ 30; Resp. SMF ¶ 30; Velez Dep. at 8.
Pekatos chose Barr, a man, for the job. He ranked Dethrow (a woman) second, Velez third, and Messier (a man) fourth. See Pekatos Deci. ¶ 33; Pekatos Dep. at 10. Pekatos told the Civilian Personnel Advisory Center in an...
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