The opinion of the court was delivered by: McVerry, J.
MEMORANDUM OPINION AND ORDER OF COURT
Presently before the Court is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant R. James Nicholson, Secretary of Veterans Affairs (Document Nos. 28 and 29), the BRIEF IN OPPOSITION filed by Plaintiff, Rickey Sanders (Document No. 37), the REPLY BRIEF filed by Defendant (Document No. 44), and the SUR REPLY TO DEFENDANT'S REPLY BRIEF filed by Plaintiff (Document No. 48).
The issues have been fully briefed and the matter is ripe for disposition. After a careful consideration of the motion, the filings in support and opposition thereto, the memoranda of the parties, the relevant case law, and the record as a whole, the Court finds that there is not sufficient record evidence upon which a reasonable jury could return a verdict for Plaintiff, Rickey Sanders, on his claims of retaliation. Therefore, the Court will grant the Defendant's motion for summary judgment in its entirety.
Plaintiff, Rickey Sanders ("Plaintiff") brought this lawsuit on November 24, 2004, by the filing of Complaint against his former employer, R. James Nicholson, Secretary of the Department of Veterans Affairs ("Defendant") in which he alleged that the Department of Veterans Affairs, Pittsburgh Healthcare System ("VA") discriminated against him on the basis of his race and religion and retaliated against him for complaining about such discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., when it "refused to hire, promote, and/or retain him for open positions in the Textile Care Section" at the VA."*fn1 Complaint, at ¶ 1. Plaintiff broadly claims that he applied for certain "full-time, part-time and/or temporary laundry worker positions in September, October, and December of 2001, and again in March 2002," and that those positions were awarded to less-qualified individuals who were not in Plaintiff's protected class(es). Complaint, at ¶ 1.
Plaintiff now concedes, however, that only two claims are properly before the Court: Mr. Sanders' claim in the instant case is that, on account of his protected activity, he was retaliated against by the Veterans Administration by failing to extend his temporary appointment in October 2001, and retaliated against when he was not selected for the position announced in December 2001.
Pl's Reply to Def's Statement of Material Facts.
Defendant has filed the instant motion for summary judgment in which it contends that Plaintiff is unable to establish a prima facie case of retaliation under Title VII. In the alternative, Defendant contends that assuming arguendo that Plaintiff could state a prima facie case of retaliation under Title VII, summary judgment should still be granted in its favor because there is no evidence that Defendant's articulated legitimate, non-retaliatory reason for (i) failing to extend his temporary appointment in October 2001 and/or (ii) failing to select him for the permanent part-time position announced in December 2001 was false or that Plaintiff's protected activity was the real reason for Defendant's decisions.
As the law requires, all disputed facts and inferences are resolved most favorable to the Plaintiff. On or about September 21, 2000, Plaintiff submitted an application for employment to the VA, in an effort to obtain a position as a temporary part-time laundry worker. The written application included the following question:
During the last ten years, have you been convicted, been imprisoned, been on probation or been on parole? (includes felonies, firearms or explosives violations, misdemeanors and all other offenses.) If yes, use Item No. 15 to provide the date, explanation of the violation, place of occurrence and the name and address of the police department or court involved.
In response to this question, Plaintiff checked the box marked "yes," and used the space under Item No. 15 to explain his past criminal violations. Specifically Plaintiff wrote: "To whom it may concern, in 1996, I was convicted for possession of drug substance. I served 11-1/2 months of house arrest and [was] placed on probation. I was charged with this crime but never tried in court because I pleaded guilty for various reasons."
In October, 2000, Plaintiff was hired as a part-time temporary laundry worker at the Veteran's Administration Pittsburgh Health Care System. His effective date of appointment was October 22, 2000, with an anticipated expiration date of October 21, 2001. At the time of his hire, Plaintiff understood that his temporary appointment did not entitle him to be automatically converted to a permanent position.
From October 2000 through June 2001, Plaintiff performed all required duties of the "laundry worker" position, frequently performing additional duties, filling in for absent workers, and working many unscheduled overtime hours and holidays.
The VA is required to have a background investigation conducted on new hires, including temporary employees who are hired for more than ninety days. Accordingly, the VA requested the United States Office of Personnel Management to conduct a background investigation of Plaintiff. According to Plaintiff, in the Summer of 2001, employment "suitability" issues arose as a result of the background investigation. The background investigation revealed four criminal charges that Plaintiff had not listed on his job application and the VA needed to know what the resolution of those charges had been.
The summary judgment record reflects that on June 4, 2001, Plaintiff was provided a letter from the VA which stated that the results of his background investigation "raise[d] a serious question as to [Plaintiff's] current suitability for competitive federal employment." The letter further explained that the investigative information could be a basis for the VA to find Plaintiff unsuitable for federal employment, and gave Plaintiff the opportunity "to make any comments or explanation you wish in the space provided after each charge," and to "provide any documentary evidence, including affidavits, to support your comments." Plaintiff understood that if he did not provide the VA with additional information about the criminal charges he might be deemed to be unsuitable for federal employment.
In June 2001, the VA issued a Vacancy Announcement 2001-45OA, regarding the availability of "five (5) laundry workers, WG-730401 permanent part time" positions with an opening date for applications of June 11, 2001, and a closing date of June 22, 2001. Initially, on July 9, 2001, Plaintiff was selected to fill this vacancy. However, on July 19, 2001, Paul Battisti, the Assistant Personnel Officer, instructed William Glass, Plaintiff's supervisor in the laundry facility, to select another candidate in place of Plaintiff due to the status of Plaintiff's pending suitability determination. The VA Handbook expressly provides that "if there is any question about an applicant's suitability, no appointment action will be taken, nor will an employment commitment be made until the matter has been resolved." (See VA Handbook 5005 Part Two, Chapter 1, Section 3b.) The ...