The opinion of the court was delivered by: Judge Joy Flowers Conti
In this memorandum order, the court considers the motion for summary judgment (Doc. No. 26) filed by defendant R. James Nicholson, Secretary of the Department of Veterans Affairs ("defendant"), with respect to the claims asserted by plaintiff Mary Lou Kuzdrowski ("plaintiff") under section 633a of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Plaintiff asserts two kinds of claims against defendant: an age discrimination claim for failure to promote and retaliation claims. After considering the joint statement of material facts, the motions and the briefs submitted by the parties, the court will grant defendant's motion. With respect to the claim asserted by plaintiff under section 633a of the ADEA for failure to promote the court concludes, after resolving all factual doubts in plaintiff's favor and drawing all reasonable inferences in her favor, that plaintiff cannot establish a prima facie case. With respect to plaintiff's retaliation claims under section 633a, the court concludes that Congress did not explicitly waive sovereign immunity with respect to retaliation claims under the ADEA and the court does not have jurisdiction to hear retaliation claims against the Department of Veterans Affairs (the "VA"), a federal agency.
The factual background is derived from the undisputed evidence of record and the disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.").
Plaintiff was born on December 1, 1950. Joint Statement of Material Facts ("J.S.") ¶1. She graduated from St. Francis School of Nursing in 1971. Id. ¶2. She received a bachelor of science degree in recreation from Slippery Rock University in 1991. Id. ¶3. Plaintiff did not obtain her bachelor of science in nursing "due to personal reasons and circumstances." Id. ¶12. She is aware that the VA would have paid for her return to college to obtain the degree had she desired to do so. Id. ¶13
There are four levels of Nurses -- Nurse I, II, III and IV -- at the Butler VA Medical Center (the "Butler VA"). Id. ¶4. Nurse levels I - III are not tied to a nurse's job title. Id. ¶5. Promotion to a higher level of nursing within levels I - III does not affect the nurse's job title. Id.
¶5. Plaintiff's job title at the Butler VA during the time period relevant to this lawsuit was staff nurse in the acute care unit. Id. ¶6.
Shelly Divers was considered for promotion from Nurse II to Nurse III in September 2001. Id. ¶21. She was born in April 1953. Id. ¶21. Nancy Culley was considered for promotion from Nurse II to Nurse III in September 2001. Id. ¶22. She was born in December 1952. Id. ¶22. Bonnie Warren (Raybuck) was considered for promotion from Nurse II to Nurse III in February 2002. Id. ¶23. All three were promoted. When nurses Divers, Culley and Warren (Raybuck) were promoted, medical center director Mike Finnegan or his associate director Rick Cotter had final authority for promotion decisions. Id. ¶24.
On January 17, 2003, a primary care/outpatient registered nurse vacancy at the Butler VA was posted in announcement 2003-14, which was the only primary care/outpatient registered nurse vacancy at the Butler VA during 2003. Id. ¶ 41. Recruitment announcement 2003-14 was open on January 17, 2003 and had a closing date of January 27, 2003. Id. ¶ 45. The announcement stated: current VA employees of this facility may apply by submitting VAF 4078, Application for Promotion or Reassignment to Human Resources. This form may be obtained from your primary clerical support or Human Resources and must be received in Human Resources (31) by the close of business on the closing date of this announcement.
Id. ¶ 45. As a current VA employee at the time, plaintiff had the obligation to apply using this procedure between while the position she desired was open. Id. ¶ 46. She did not submit an application for announcement number 2003-14 between January 17, 2003 and January 27, 2003. Id. ¶ 47. Plaintiff was on leave during that period. Id. The successful candidate, however, did not apply for that position until May 2003. Id.
In late summer or early fall 2003, the Nurse Professional Standards Board (the "Board") at the Butler VA considered plaintiff for a non-competitive promotion to Nurse Level III. Id. ¶8. At the time, plaintiff was approximately fifty-two years old. Id. ¶17. The members of the Board who considered plaintiff for promotion were Marcia Schoeffel, Gloria Wenzel, and Carol Niggel. Id. ¶9. Following the meeting of the Board, the acting director of the Butler VA, Terry Gerigk, made a final determination regarding plaintiff's promotion. Id. ¶10. Sixteen nurses, including plaintiff and eleven nurses who were younger than plaintiff, were considered for promotion to Nurse III during 2003. Id. ¶15. The nurses ranged in age from approximately 30 years old to approximately 63 years old. Id. ¶16. None of the sixteen nurses were promoted in 2003 to Nurse III, including plaintiff and the eleven nurses who were younger than plaintiff. Id. ¶¶ 18, 19.
On August 25, 2003, plaintiff made initial contact with the ORM (Office of Resolution Management) with respect to discrimination against her on the basis of reprisal and age discrimination when the Butler VA refused to promote her to Nurse III. Id. ¶ 70.
Plaintiff submitted to Sandra McCarthy, by memorandum dated September 10, 2003, a request to be transferred to the outpatient department of the Butler VA. Id. ¶ 38. In this memorandum, plaintiff stated that she was "requesting an outpatient position when any one of them becomes available." Id. ¶ 39. At the time, there were no vacant positions at the Butler VA accepting applications for primary care/outpatient registered nurses; however, the vacancy announced in January 2003 was not filled until after plaintiff's request was submitted. Id. ¶ 40. Plaintiff was aware that there was no specific vacancy announcement posted in the primary care/outpatient department at the time she submitted her request. Id. ¶ 42. On September 16, 2003, the Butler VA replied to plaintiff's memorandum in writing. Id. ¶ 43. In its response, the Butler VA explained that it does not keep requests for potential future vacancies on file and that plaintiff must apply for specific vacancies when they are announced. Id. ¶ 44.
On September 29, 2003, plaintiff filed an EEO Formal Complaint for Discrimination for Charge 200H-0529-2003104159, which was her first formal EEO complaint. Id. ¶¶ 34, 70. In the complaint plaintiff alleged she was discriminated against on the basis of reprisal and age discrimination when the Butler VA refused to promote her to Nurse III. Id. ¶ 70. The complaint confirms that the NLRB activity in which she engaged in 2002 was the basis for plaintiff's retaliation claim. Id. ¶ 33. Prior to September 29, 2003, plaintiff had not engaged in any EEO activity against the Butler VA. Id. ¶ 34. Fourteen of the sixteen nurses at the VA who were considered for promotion to Nurse III in 2003 and were not promoted had never filed an EEO complaint against the Butler VA. Id. ¶ 35.
Plaintiff received written notification dated October 21, 2003 from the Board indicating that she would not be promoted from Nurse II to Nurse III, because she "lack[ed] the education and programmatic leadership for a Nurse III." Id. ¶11. Plaintiff did not supervise any VA employees between 1994 and 2004, aside from periodically serving as a ...