Free Order on Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Pending before the Court are Plaintiff's Motion for Summary Judgment (Doc. #94) 16 and Defendant's Motion for Summary Judgment (Doc. #92). For the following reasons, 17 Plaintiff's Motion for Summary Judgment is denied and Defendant's Motion for Summary 18 Judgment is granted. 19 I. 20 Plaintiff is currently employed as an employee relations specialist at the Carl T. 21 Hayden Veterans Affairs Medical Center in Phoenix, Arizona. During her employment, 22 Plaintiff applied for a variety of other positions, including a computer specialist position and 23 a human resources management position, and was not selected to fill these jobs. As a result 24 of her non-selection, Plaintiff filed EEO complaints, alleging she was not selected because 25 she is a minority and a woman, and because of retaliation for prior EEO activity. Plaintiff 26 also filed EEO complaints alleging that several adverse employment actions were taken 27 against her for the same reasons. 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) R. James Nicholson, Secretary,) ) Department of Veterans Affairs, ) ) Defendant. ) Martha Slaughter-Payne,

No. CV 03-2300-PHX-ROS ORDER

FACTS AND PROCEDURAL HISTORY

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In her complaint, Plaintiff alleges three general causes of action: (1) On multiple occasions, she applied for a Computer Specialist Position (GS-

344) at levels GS-9 and above, and was not selected on the basis of her race and/or sex and in retaliation for her participation in constitutionally protected activities. (2) She was denied a promotion to a Human Resources Management Specialist

Position at the GS-11 level on the basis of her race and/or sex and in retaliation for her participation in constitutionally protected activities. (3) Several other adverse employment actions were taken against her in retaliation

for her participation in constitutionally protected activities. Both Plaintiff and Defendant have moved for summary judgment with respect to all claims. II A. DISCUSSION Legal Standard A court must grant summary judgment if the pleadings and supporting documents, viewed in the light most favorable to the non-moving party, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Substantive law determines which facts are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Also, the dispute must be genuine, that is, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Nonetheless, "[a]s a general matter, the plaintiff in an employment discrimination action need produce very little evidence in order to overcome an employer's motion for summary judgment." Chuang v. University of California Davis, Bd. of Trustees, 225 F.3d 1115, 1124 (9th Cir. 2000). A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex, 477 U.S. at 323-24. Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an -2Document 119 Filed 03/21/2007 Page 2 of 19

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element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994). The moving party need not disprove matters on which the opponent has the burden of proof at trial. Celotex, 477 U.S. at 323. The party opposing summary judgment "may not rest upon the mere allegations or denials of [the party's] pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). There is no issue for trial unless there is sufficient evidence favoring the non-moving party; if the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). However, because "credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are jury functions, not those of a judge, . . . the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor" at the summary judgment stage. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)); see Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). B. Analysis 1. Procedural arguments

Plaintiff makes the following procedural arguments in her Response to Defendant's Motion for Summary Judgment: (1) Defendant's Statement of Facts are in narrative form, (2) Defendant inappropriately makes requests for admissions in his Statement of Facts, (3) Defendant's Statement of Facts are misnumbered, (4) several of Defendant's Statement of Facts are not used in Defendant's Motion for Summary Judgment, (5) Defendant's Statement of Fact number 28 is hearsay and inadmissible, (6) sections III-VI of Defendant's Motion for Summary Judgment do not cite to the record, and (7) Defendant's Motion for Summary Judgment is in 12 point font and should be struck for this reason. a. Narrative form -3Document 119 Filed 03/21/2007 Page 3 of 19

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Plaintiff argues that Defendant's Statement of Facts are in narrative form. While some of Defendant's Statement of Facts could be more concise, Defendant did not violate either the spirit or the letter of the rules. Further, even if there were a slight violation, Plaintiff was not prejudiced to such an extent that striking Defendant's Statement of Facts is warranted. See e.g., In re Webb, 349 B.R. 711, 718 (D.Or. 2006) (stating that a motion to strike can be denied if Plaintiff's were not prejudiced by a violation of the rules). Moreover, the Federal Rules do not provide for motions to strike except pursuant to Rule 12(f), which is not applicable here. b. Inappropriate requests for admissions

Plaintiff next argues that Defendant inappropriately made requests for admissions in the Statement of Facts. Plaintiff is correct that this is an inappropriate way to bring requests for admissions under Rule 36. Therefore, the Court will not consider any such requests contained within Defendant's Statement of Facts.1 c. Misnumbered statement of facts

Plaintiff argues that Defendant's Statement of Facts are misnumbered and therefore should be stricken. While Plaintiff is correct that Defendant misnumbered his Statement of Facts, the Court finds that this technical violation of the rules was unintentional. After reviewing Plaintiff's responses to Defendant's Statement of Facts, despite the confusion created by this violation, Plaintiff was able to adequately respond and the Court was able to understand the Statement. Therefore, Plaintiff was not prejudiced to an extent that striking Defendant's Statement of Facts is warranted.

d.

Unused statement of facts

Plaintiff argues that several of the facts set forth in Defendant's Statement of Facts were not used in Defendant's Motion for Summary Judgment. Plaintiff cites no authority The Court notes that Defendant did properly file requests for admissions under Rule 36 along with its Motion for Summary Judgment. Ultimately, however, the Court has ruled in Defendant's favor without considering the requests, the Court need not rule on them. -4Document 119 Filed 03/21/2007 Page 4 of 19
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holding that a Statement of Fact can be stricken for failure to use it and cite it in a corresponding motion. Therefore, the Court will not consider this alleged procedural error against Defendant. e. Statement of Fact Number 28

Plaintiff argues that Defendant's Statement of Fact number 28 is hearsay and inadmissible. The Court agrees and will not consider the Statement of Fact in deciding the Motions for Summary Judgment. f. Lack of citation

Plaintiff argues that sections III-VI of Defendant's Motion for Summary Judgment do not cite to the record and should be stricken. As Defendant argues in its Reply, the reason Defendant did not cite to the record in those sections because its over-arching argument is Plaintiff failed to present evidence to support her prima facie case of discrimination or retaliation. Thus, these sections are not relevant to resolution of the Motions and will not be considered. g. Fonts

Plaintiff argues that Defendant's Motion for Summary Judgment is in 12-point font and should be stricken because this is smaller than the 13-point minimum, as mandated in Local Rule 7.1(b)(1). Upon visual inspection, it does not appear that Defendant uses any smaller font than Plaintiff does in her pleadings. Additionally, comparing Defendant's brief to a 13-point sample of text reveals no difference. Therefore, Defendant has not violated Local Rule 7.1.2

2.

Computer specialist GS-334-9 position

The Court notes that none of Plaintiff's filings comply with the requirement of Rule 7.1 that the left margin be no less than 1 ½ inches. -5Document 119 Filed 03/21/2007 Page 5 of 19

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Plaintiff argues that she applied for a Computer Specialist Position (GS-344) at levels GS-9 and above, and was not selected on the basis of her race and/or sex and in retaliation for her participation in constitutionally protected activities. With respect to the sexual/racial discrimination claim, "[t]he [Plaintiff] in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that [s]he belongs to a racial minority; (ii) that [s]he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite [her] qualifications, [s]he was rejected; and (iv) that, after [her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Also, with respect to the retaliation claim alleged in the case, in order to support a prima facie case of retaliatory failure-to-hire, Plaintiff must show "that [s]he applied for an available job; and that [s]he was qualified for that position." Velez v. Janssen Ortho, LLC, 467 F.3d 802, 807 (1st Cir. 2006). Thus, in order to support a prima facie case with respect to both discrimination and retaliation claims, at a minimum, Plaintiff must show that she was qualified for a Computer Specialist Position (GS-344) at a GS-9 level. "If an applicant is not qualified for the job in question, she has failed to establish a prima facie case. Congress did not intend the Civil Rights Act to saddle business with unqualified employees." Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1275-76 (9th Cir. 1981). The United States Office of Personnel Management Operating Manual provides the Qualification Standards for General Schedule ("GS") Positions. The following table shows the amounts of education and/or experience required to qualify for positions covered by this standard. GRADE EDUCATION EDUCATION GENERAL SPECIALIZED

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GS-5

4-year course of study leading to a bachelor's degree3 1 full year of graduate level education or superior academic achievement Master's or equivalent graduate degree or 2 full years of progressively higher level graduate education leading to such a degree or LL.B. or J.D., if related Ph.D. or equivalent doctoral degree or 3 full years of progressively higher level graduate education leading to such a degree or LL.M., if related None

3 years, 1 year of which was equivalent to at least GS-4 None

None

GS-7

1 year equivalent to at least GS-5

GS-9

None

1 year equivalent to at least GS-7

GS-11

None

1 year equivalent to at least GS-9

GS-12 and above

None

1 year equivalent to at least next lower grade level.

Equivalent combinations of education and experience are qualifying for all grade levels for which both education and experience are acceptable.

According to the Operating Manual, one year of full-time undergraduate study is defined as 30 semester hours. -7Document 119 Filed 03/21/2007 Page 7 of 19

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An applicant need not meet both the education and experience requirements for GS job positions. Rather, an applicant may use a combination of the two to be qualified for the position. The Operating Manual states: Combining Education and Experience: Combinations of successfully completed post-high school education and experience may be used to meet total qualification requirements for the grade levels specified in the table, and may be computed by first determining the applicant's total qualifying experience as a percentage of the experience required for the grade level; then determining the applicant's education as a percentage of the education required for the grade level; and then adding the two percentages. The total percentages must equal at least 100 percent to qualify an applicant for that grade level. Only graduate education in excess of the amount required for the next lower grade level may be used to qualify applicants for positions at grades GS-9 and GS-11. (When crediting education that requires specific course work, prorate the number of hours of related courses required as a proportion of the total education to be used.) The following are examples of how education and experience may be combined. ...

!

The position to be filled is a Management Analyst, GS343-9. An applicant has 6 months of specialized experience equivalent to GS-7 and 1 year of graduate level education. The applicant meets 50 percent of the required experience but none of the required education, since he or she does not have any graduate study beyond that which is required for GS-7. Therefore, the applicant meets only 50 percent of the total requirement and is not qualified for the position. (The applicant's first year of graduate study is not qualifying for GS-9). The position to be filled is a Music Specialist, GS-105111. An applicant has 9 months of specialized experience equivalent to GS-9 and 2 ½ years of creditable graduate level education in music. The applicant meets 75 percent of the required experience and 50 percent of the required education, i.e., the applicant has ½ year of graduate study beyond that required for GS-9. Therefore, the applicant exceeds the total requirement and is qualified for the position. (The applicant's first 2 years of graduate study are not qualifying for GS-11).

!

The Operating Manual then provides for a list of occupational series that are covered by this qualification standard. Both the GS-334 Computer Specialist and the GS-201 Human Resources Management positions are listed. -8Document 119 Filed 03/21/2007 Page 8 of 19

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According to the Plaintiff's applications, she has taken 4 computer related classes at the University of Phoenix: (1) Networking Essentials; (2) Administering Microsoft Windows NT 4.0; (3) Supporting Microsoft Windows NT 4.0 Enterprise Technologies; and (4) Supporting Microsoft Windows NT Core Technologies for a total of 6 credit hours. Plaintiff also references her Microsoft Certified Professional certification. Plaintiff, however, does not explain how this certification properly qualifies her for the Computer Specialist GS-3349 position, while Defendant states that this is merely an entry level certification that does not qualify her for even the GS-5 educational requirement. No additional education is listed on Plaintiff's application. Plaintiff has not completed a 4-year course of study leading to a bachelor's degree. Thus, she does not meet the educational requirement for the GS-5 level or higher. The only way she could have qualified for levels above GS-5 (i.e. GS-7, GS-9, GS-11) is through the experience requirement because she met 0 percent of the educational requirements, in order to qualify at these levels. Plaintiff must then meet 100 percent of the experience requirement. In order to meet 100 percent of the experience requirement for the GS-7 level, Plaintiff must have 1 year of specialized experience at the GS-5 level. According to the Operating Manual, specialized experience is defined as: Experience that equipped the applicant with the particular knowledge, skills, and abilities to perform successfully the duties of the position, and that is typically in or related to the work of the position to be filled. To be creditable, specialized experience must have been equivalent to at least the next lower grade level in the normal line of progression for the occupation in the organization. The Operating Manual also defines the individual occupational requirements for the GS-334 Computer Specialist position. The Operating Manual defines "Specialized

Experience (for positions above GS-5)" in the GS-334 Computer Specialist position as: Experience in the performance of tasks such as:

!

Translating detailed logical steps developed by others into language codes that computers accept where this required understanding of procedures and limitations appropriate to use of a programming language. -9-

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! ! ! !

Interviewing subject-matter personnel to get facts regarding work processes, and synthesizing the resulting data into charts showing information and flow. Operating computer consoles where this involved choosing from among various procedures in responding to machine commands or unscheduled halts. Scheduling the sequence of programs to be processed by computers where alternatives had to be weighed with a view to production efficiency. Preparing documentation on cost/benefit studies where this involved summarizing the material and organizing it in a logical fashion.

Such skills are typically gained in the computer field or through performance of work where the primary concern was the subject matter of computer application (e.g. supply, personnel, chemical process control), and computer-related efforts were required to facilitate the basic duties. Also, work in management analysis, program analysis, or a comparable field may have provided such skills. Plaintiff's experience includes the following:

! ! ! ! ! ! ! !

Medical Clerk, GS-679-4, from May 1989 until December 1989. Program Clerk, GS-303-5, from December 1989 until February 1990. Personnel assistant, GS-203-5, from February 1990 until May 1992 Personnel assistant, GS-203-6, from May 1992 until June 1992. Secretary, GS-318-5, from June 1992 until May 1994. Personnel assistant, GS-203-6, May 1994 until April 1995 Personnel assistant, GS-203-7, April 1995 until September 1999. Vocational Rehabilitation Specialist, September 1999 until December 2001. GS-1715-9,

In support of its Motion for Summary Judgment, Defendant presents a declaration of 27 Mauricio Ponce, the Chief of Human Resources Management Service for the VAMC in 28 - 10 Case 2:03-cv-02300-ROS Document 119 Filed 03/21/2007 Page 10 of 19

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Columbia, South Carolina.4 After reviewing the job qualifications and Plaintiff's application, experience, and personnel folder, Mr. Ponce concluded5: 24. Microsoft Certified Professional (MCP) is an entry level certification, and does not itself qualify an applicant for

Plaintiff argues that Mr. Ponce's affidavit is inadmissible and that the Court should not consider it in deciding the motions for summary judgment. Plaintiff argues that Mr. Ponce's affidavits are based on hearsay and that Mr. Ponce lacks personal knowledge under Rule 602 of the statements made in the affidavits. These arguments are without merit. Mr. Ponce's affidavits provide expert opinion under Rule 702 and 703. Rule 602 explicitly states that "[t]his rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses." Rule 703 states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference . . . need not be admissible in evidence in order for the opinion or inference to be admitted." Therefore, Mr. Ponce, as an expert, may rely on inadmissible evidence to form his opinions, so long as that evidence is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Mr. Ponce states that he relied upon the job announcement, Plaintiff's applications, the Operating Manual standards for the positions, the job description, and Plaintiff's personnel folder in forming his opinion that Plaintiff was not qualified for the job. Plaintiff argues that since Ponce failed to state "how [he] received the documents, or where [the documents] came from," the documents are therefore hearsay and thus the documents must be excluded. Plaintiff has attached copies of the job announcement, job description, and Operating Manual standards as exhibits as support for her response to Defendant's Motion for Summary Judgment, and the Court concludes that she is not objecting to the admission of these documents. As for Plaintiff's applications and personnel folder, these documents were provided to Ponce by the VA, as records of regularly conducted activity. Thus under Rule 803(6), they are admissible. Further, all of these documents are relevant in determining Plaintiff's job qualifications (as part of her prima facie case) and their probative value substantially outweighs their prejudicial effect. Also, as the Chief of Human Resources who oversees "the review of applications for employment and the application of [Operating Manual] standards for employment to those applications," it is reasonable for Mr. Ponce to rely on the above documents in arriving at his conclusion of whether Plaintiff was qualified for the positions. The Court also notes that Mr. Ponce is qualified to render an opinion, as he has specialty experience in the field of reviewing applications and applying the Operating Manual standard to those applications. Mr. Ponce and his affidavit meet the requirements of Rule 702 and 703 and his testimony is admissible and can be relied upon by the Court in deciding the motions for summary judgment. Plaintiff also objects to the admission of the Huckaby affidavit, however, the Court did not consider this affidavit in deciding the motions for summary judgment. - 11 Document 119 Filed 03/21/2007 Page 11 of 19
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a computer specialist position. The OPM qualification standards do not require a MCP for any computer specialist position regardless of the level. The Computer Specialist qualification standard has its own Individual Standard which outlines the qualifications for each grade level. In her application, the Plaintiff lists software applications that she utilizes on the personnel computers in Human Resources, however, the software applications listed are those that are utilized by secretaries and other administrative staff and does not meet the definition of the specialized experience noted above. She also indicated that she has experience in both hardware and software, networking software, communication software, etc. However, the experience does not meet the specialized experience required. Plaintiff does not meet the qualification for the GS-344-07.

Therefore, the Plaintiff only meets the OPM's minimum standards for Computer Specialist, Series 334 at the GS-5 level. It was error to qualify her above this level.

While Plaintiff "need produce very little evidence in order to overcome [Defendant's] 14 motion for summary judgment," Plaintiff provides no evidence as to how she meets the 15 specialized experience qualifications for the position. Chuang, 225 F.3d at 1124. Plaintiff 16 only refers to the fact that she was referred for the position by Ron Webb, a Human 17 Resources Specialist. Mr. Webb, in a letter dated November 6, 1997 states that Plaintiff is 18 "eligible for the [Computer Specialist GS-334-9] position." This letter, however, does not 19 explain how Plaintiff meets the qualifications for the position as set forth in the Operating 20 Manual. Further, Plaintiff does not provide deposition or any other evidence explaining how 21 she is qualified. Rather, Plaintiff merely repeatedly states, in conclusory fashion, that she is 22 indeed qualified for the position. This amounts to speculation and is insufficient for 23 summary judgment purposes. See Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir. 24 2006) (stating that statements of ultimate facts, conclusions of fact, and conclusory 25 statements of fact are insufficient). 26 27 28 - 12 Case 2:03-cv-02300-ROS Document 119 Filed 03/21/2007 Page 12 of 19

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There is no issue of material fact that Plaintiff is not qualified for the Computer Specialist GS-334-9 position and summary judgment will be granted with respect to Plaintiff's discrimination and retaliation claims regarding the Computer Specialist GS-344-9 position. 3. Personnel management specialist GS-201-11 position

Plaintiff argues that she applied on December 6, 2001 for a Human Resource Specialist Position6 at the GS-11 level and was not selected on the basis of her race and/or sex and in retaliation for her participation in constitutionally protected activities. Once again, since Plaintiff did not meet the educational requirements for even a GS-5 position, she could have only qualified for the position by meeting 100% of the experience requirement. According to the Operating Manual, in order to qualify for 100% of the experience requirement, Plaintiff would need to have 1 year of specialized experience at the GS-9 level. Plaintiff argues that her experience as a Vocational Rehabilitation Specialist, GS-1715-9, from September 1999 until December 2001 meets the specialized experience requirement for the Personnel Management Specialist GS-201Position at the GS-11 level. The Operating Manual defines specialized experience as "experience that equipped the applicant with the particular knowledge, skills, and abilities to perform successfully the duties of the position, and that is typically in or related to the work of the position to be filled. To be creditable, specialized experience must have been equivalent to at least the next lower grade level in the normal line of progression for the occupation in the organization." The vacancy announcement for the Human Resources Management Specialist position, GS-201-11, that Plaintiff applied for defines specialized experience as "experience as a seasoned personnel specialist with substantive personnel work in one or more of the human resources functions, i.e. recruitment, classification, employee relations, labor relations, et. [sic] in the Federal civilian sector." The vacancy also requires a narrative

The parties refer to this position as both a Human Resources Management Specialist and a Personnel Management Specialist. - 13 Document 119 Filed 03/21/2007 Page 13 of 19

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statement which details how the applicant possesses the knowledges, skills, and abilities required for the job. This requirement for the Human Resources Management Specialist position GS-201-11, as defined in the vacancy announcement, is as follows: 1. Ability to interpret and properly apply a broad range of Federal Personnel procedures, policies, and regulations which require a comprehensive knowledge and understanding of the major human resources management programs. Ability to provide guidance and consultative services to managers in a variety of human resources functions, including recruitment strategies, succession planning, position management, pay administration, performance management employee relations, etc. Ability to develop and present a variety of employee development and training programs and career development strategies. Ability to gather data and other factual information to respond to a variety of inquiries and arrange pertinent findings in a clear concise presentation. Ability to apply analytical skills and creative techniques to resolve a variety of problems and/or recommend alternative solutions.

2.

3.

4.

5.

Defendant argues that Plaintiff's experience did not meet the specialized experience requirement for a Human Resource Specialist Position at the GS-11 level because her experience at the GS-9 level was not within the human resources department. Defendant further argues that while Plaintiff did have experience in the human resources sector, this experience was at the GS-7 level, which did not qualify her for a GS-11 level position, as according to the Operating Manual, "[t]o be creditable, specialized experience must have been equivalent to at least the next lower grade level. . . ." Defendant is correct. Despite having experience in human resources, Plaintiff obtained this experience at the GS-7 level, and not the GS-9 level. Therefore, her experience is not creditable toward a GS-11 position as specialized experience. The only experience that Plaintiff had at a GS-9 level was her work as a Vocational Rehabilitation Specialist, GS1715-9. Therefore, in order for Plaintiff to be qualified for the position, this experience must have been "experience as a seasoned personnel specialist with substantive personnel work - 14 Document 119 Filed 03/21/2007 Page 14 of 19

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in one or more of the human resources functions, i.e. recruitment, classification, employee relations, [or] labor relations." (Emphasis added). After reviewing Plaintiff's application, the Operating Manual, the vacancy announcement for the position, and Defendant's affidavits from hiring personnel, the Court concludes that Plaintiff's GS-9 level experience does not meet that definition. In her application, Plaintiff describes her experience as a Vocational Rehabilitation Specialist, level GS-9, as follows: I work with a wide variety of people representing the Medical Center. I work closely with contracting companies to assure proper completion of jobs and adherence to company guidelines. I work with people from assigned veterans to treatment teams, individual physicians, social workers, psychologists, nursing personnel, Resource Management Service (RMS) personnel, and representatives from local businesses. I provide meaningful therapeutic intervention for assigned patients, communicate therapeutic progress with involved personnel . . . and assist veterans with job placement at the VA Medical Center and private organizations within the community. According to Defendant's affidavits7, this experience involved making placements of disabled individuals, which is the province of a Vocational Rehabilitation Specialist and a function that a Human Resources Management Specialist does not perform. Further, according to Defendant's affidavits, A Vocational Rehabilitation Specialist counsels clients and develops a vocational plan that may include physical, emotional and vocational training to reach an employment goal. This position does not require knowing, understanding and applying Federal Personnel laws, regulations and policies. The Vocational Rehabilitation Specialist seeks and obtains information about interpretation of Federal Personnel laws, regulations and policies from the Personnel Management Specialist . . . . One must serve in a GS-9 position where one apply [sic] federal personnel laws, regulations and policies. In fact, in her application, Plaintiff describes her experience as a GS-7 in human

24 resources. She details which policies, regulations, and laws she has experience with and 25 explains how she staffed positions and determined pay scales. All of this experience is 26 27 28 In this case, the affidavits referenced are those of Judith Law and Martin Lieberman. Plaintiff did not object to their admission. - 15 Case 2:03-cv-02300-ROS Document 119 Filed 03/21/2007 Page 15 of 19
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relevant experience for a Human Resources Management Specialist, as contrasted with Plaintiff's explanation of her work as a Vocational Rehabilitation Specialist. Unfortunately for Plaintiff, this experience was obtained at a GS-7 level, which does not qualify as specialized experience for the GS-11 level. Defendant's affidavits also state that Plaintiff was not the only applicant with Vocational Rehabilitation Specialist that was unqualified for the position and again that this experience did not qualify an applicant for the GS-11 Human Resources Management Specialist position. See Law Deposition at pp. 8-20; Lieberman Deposition at 21-27. Another affidavit stated that in order to be qualified for the position, Plaintiff would need experience as a GS-9 in the human resources department. Id. Defendant also provided affidavits which stated that Plaintiff is currently employed as a GS-9 as a human resources specialist and that she is currently obtaining the specialized experience to become qualified for a GS-11 Human Resources Management Specialist position. Id. Plaintiff's Vocational Rehabilitation Specialist experience at the GS-9 level does not qualify as specialized experience for a Human Resources Management Specialist at the GS11 level. Therefore, Plaintiff was not qualified for the Human Resources Management Specialist GS-11 position. Summary judgment will be granted in favor of the Defendant with respect to Plaintiff's discrimination and retaliation claims regarding the Human Resources Management Specialist GS-201-11 position. 4. Other retaliation claims

In her Equal Employment Opportunity (EEO) complaint, Plaintiff alleged that she was retaliated against in the following ways ("EEO Complaints 1 through 5"):8

Aside from the claims discussed above, Plaintiff makes additional allegations of retaliation in her motion for summary judgment. These allegations, however, were neither raised in Plaintiff's complaint nor in Plaintiff's EEOC complaint. "In order to establish subject matter jurisdiction over her Title VII claim, Plaintiff was required to exhaust her administrative remedies." B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1099 (9th Cir. 2002). "Under Title VII, a plaintiff must exhaust her administrative remedies by filing a timely charge with the EEOC, or the appropriate state agency, thereby affording the agency an - 16 Document 119 Filed 03/21/2007 Page 16 of 19

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1.

Plaintiff received a Voluntary Separation Incentive Payment ("VSIP") (Buyout) letter on September 20, 2001. Plaintiff received a job offer for a GS-7 position on September 26, 2001. Plaintiff received notification of a pending Reduction in Force (RIF) for her position as a Vocational Rehabilitation Specialist GS-9 in January 2002. On February 11, 2002, Plaintiff was required to develop a training plan in order to attend a meeting in San Francisco. On February 20, 2002, Plaintiff was asked to log in and out when she left the department and was informed that her morning arrival and evening departure times were being monitored.

2. 3.

5 6 4. 7 8 5. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff alleges that these actions were in retaliation to her prior EEO activity as a complainant and representative. In her Motion for Summary Judgment, she also alleges that these actions were in retaliation for her participation in a formal protest on August 31, 2001 which alleged that the Veterans Affairs Medical Center's (VAMC) promotion practices were discriminatory. "A plaintiff bringing an action under Title VII is required to establish a prima facie case of retaliation by showing that (1) she engaged in a protected activity, (2) that she was thereafter subjected to adverse employment action by her employer, and (3) that there was a causal link between the two." Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1354 (9th Cir. 1984). "[N]ot every employment decision amounts to an adverse employment action," but rather, "only non-trivial employment actions that would deter reasonable

opportunity to investigate the charge. The administrative charge requirement serves the important purposes of giving the charged party notice of the claim and `narrow[ing] the issues for prompt adjudication and decision." Id. Therefore, any additional claims of retaliation that were not raised in an EEOC complaint will not be addressed by this Court form lack of subject matter jurisdiction.

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employees from complaining about Title VII violations will constitute actionable retaliation." Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000). "Mere ostracism in the workplace is not enough to show an adverse employment decision." Id. at 929. Failure to establish even one of the factors required for a prima facie case is fatal to a claim of retaliation. See e.g. Fernandez, 653 F.2d at 1275-76. With respect to EEO Complaint 1, the Court does not find an adverse employment action. A VSIP letter is an offer to an employee to accept a buyout in exchange for the termination of her employment position. Plaintiff declined the offer such that the action did not adversely affect her. With respect to EEO Complaint 2, the Court reaches the same conclusion. A job offer, even if it were for less salary than the Plaintiff previously made, did not adversely affect her Further, the Court notes that despite this VSIP letter, Plaintiff was eventually kept in a GS-9 level position with no decrease in pay. With respect to EEO Complaint 3, the Court notes that the Reduction in Force never actually took place, as Defendant was denied the authority to conduct a RIF. The fact that Plaintiff was kept apprized of a possible Reduction in Force does not constitute an adverse employment action especially if the RIF never took place. With respect to EEO Complaints 4 and 5, the Court does not find these adverse employment actions because even if they are adverse, they are trivial at best, and therefore not actionable. Since Plaintiff has not stated an actionable adverse employment action, she has not met her burden of proving a prima facie case of retaliation. Summary judgment will be granted in favor of Defendants with respect to all of Plaintiff's retaliation claims. III. CONCLUSION Accordingly, IT IS ORDERED that Defendants Motion for Summary Judgment (Doc. #92) is GRANTED. The Clerk of Court shall enter judgment in favor of Defendants WITH PREJUDICE.

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IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment (Doc. #94) is DENIED. IT IS FURTHER ORDERED that Defendant's requests for admissions under Rule 36 are DENIED AS MOOT.

DATED this 21st day of March, 2007.

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