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Turner v. Leavitt

March 25, 2008


The opinion of the court was delivered by: Conti, District Judge


I. Introduction

Pending before the court is the motion for summary judgment (Docket No. 48) filed by defendant Michael Leavitt, Secretary of the United States Department of Health and Human Services (hereinafter "defendant"), with respect to the claim asserted by plaintiff Dr. Nina Turner (hereinafter "Turner" or "plaintiff") under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Plaintiff, in her complaint, asserted a claim against defendant for employment discrimination based on sex. After considering the corrected joint statement of material facts ("J.S."), defendant's motion for summary judgment, plaintiff's response to that motion, and the parties' respective memoranda of law, the court will deny defendant's motion for summary judgment.

II. Factual Background and Procedural History

The National Institute for Occupational Safety and Health ("NIOSH") is a part of the Centers for Disease Control and Prevention ("CDC"). (J.S. ¶ 1.) The CDC is part of the Department of Health and Human Services ("HHS"). (Id.) Plaintiff is currently employed by the ("NIOSH") and her position is that of Research Physical Scientist, a grade level of GS-13. (Id. ¶¶ 1, 2, 4, 8.) Plaintiff has a Bachelor of Arts degree in Biology from the University of Virginia. (Id. ¶ 14.) Plaintiff has a Masters of Science degree in Exercise Physiology from Penn State University. (Id. ¶ 15.) Plaintiff has a Ph.D. degree in Applied Physiology from Penn State University. (Id. ¶ 16.) Plaintiff's previous title was that of Research Physiologist. She worked as a Research Physiologist at grade level GS-11, from 1989 to 1991. (Id. ¶ 11.) Her grade level as a Research Physiologist from 1995 to October 2002 was GS-13. (Id. ¶ 8.) Her current job duties are "to conduct research on personal protective equipment, the physiological and biological effects of personal protective equipment, such as safety harnesses, firefighter protective clothing, and to publish . . . research findings." (Def.'s Ex. A at 9:9-15; J.S. ¶¶ 5, 6.) Plaintiff also prepared job descriptions for two positions (physical science technician GS-13 and research biomedical engineer GS-13/14), evaluations and award nominations, all of which she submitted to Metzler who subsequently approved them. (Pl.'s Ex. 17 at 22-25, 35-36; Pl's Ex. 19.) Plaintiff's duties in her current position of Research Physical Scientist are the same as her previous duties as a Research Physiologist. (J.S. ¶ 10.)

Plaintiff in November 2002 discussed her proposal for a women firefighter research project with Snyder. (Pl.'s Ex. 20 at 250; Pl.'s Ex. 11, at 7.8; J.S. ¶ 104.) Snyder responded to plaintiff by saying that he once knew of a woman who tired to be a firefighter and it was a joke. (Id.) Snyder, initially in his August 2003 affidavit, denied having made such a statement and noted that he does not make "derogatory remarks about female performance based on their sex." (Pl.'s Ex. 5 at 1.) Snyder, however, later remembered that he had supervised a female employee who wanted to be a firefighter and stated that the woman experienced nasty jokes when she tried to join several organizations. (Pl.'s Ex. 21 at 14; J.S. ¶ 106.)

Plaintiff applied for the position of Physiologist, Technology Branch, National Personal Protective Technology Laboratory ("NPPTL") as both an internal and external candidate, as dictated by the vacancy announcement numbers MP7-03-003 and DE7-03-005. (Def.'s Ex. A at 50:18-22; Def.'s Ex. B; J.S. ¶ 17.) The duties for the GS-14 Physiologist position ("the position") are enumerated in the vacancy announcement and in the position description. (Def.'s Ex. A at 57:3-5; Def.'s Ex. B; Pl.'s Ex. 14; J.S. ¶ 18.) The position description states that:

[t]he incumbent plans, prioritizes, initiates, designs, conducts, coordinates, and directs and leads basic and applied research products to advance the understanding [of] exercise physiology, heat stress, and the physiological responses associated with a wide variety of occupational personal protective technologies. The work is expected to result in new equipment, techniques, or methods to supplement or establish a theoretical basis for the design of personal protective technologies (PPT) for emergency responders and other American workers. . . . (Def.'s Ex. H; Pl.'s Ex. 14; J.S. ¶ 50). The position was described as 80% research and 20% professional advice and consultation. (Pl.'s Ex. 14; J.S. ¶ 109).

Applicants for the position were directed to address each of the "knowledge, skills and abilities" ("KSAs") for the position. (J.S. ¶ 20.) KSA number 5 is the "[a]bility to communicate written data in scientific form." (Id. ¶ 117.) After submitting their applications, applicants were assigned a numeral rating by NIOSH Human Resources Specialist Idelle Bailin (hereinafter "Bailin") based upon the candidates' descriptions of their KSAs. (Id. ¶¶ 21, 24.) After assigning numerical ratings to the applicants, Bailin selected four candidates, including plaintiff, that she listed alphabetically on the promotion certificates and referred them to the selecting official, Jay Snyder ("Snyder"), for consideration. (Def.'s Ex. C at 2-3; Def.'s Ex. A at 51:7-9; Def.'s Ex. E; J.S. ¶¶ 27, 28, 33.) She received a rating of 19 out of 20 on the KSAs for the position, while each of the male candidates received a score of 12. (Pl.'s Ex. 12; J.S. ¶ 98.)

Snyder, a GS-13 Physical Scientist and the then Acting Chief of the Technology Branch at NPPTL, was the selecting official for the GS-14 physiology position. (J.S. ¶¶ 34, 35.) Rich Metzler, the Director of the NPPTL for NIOSH, also had a limited role in the selection process. (Id. ¶ 67, 68, 69.) Metzler testified that Snyder made the ultimate decision, but that Snyder consulted with him and informed him of Snyder's recommendations and rationale. (Def.'s Ex. F at 315:22-316:7; J.S. ¶ 69.) Snyder reviewed the certification list he received from Bailin, the human resources specialist, the written applications submitted by the candidates and made the determination that the four candidates deserved an interview. (Def's Ex. F at 395:10-20, 395: 24-396:19; Def.'s Ex. G at 5.) Snyder did not review the candidates' numerical ratings assigned by Bailin for the KSAs. (J.S. ¶¶ 30, 31.) Snyder testified that the successful candidate would be well-rounded with broad work experience in physiology, have insight and exhibit innovation, and that this candidate would utilize his or her background to provide insight into the direction that the human performance program at NPPTL would develop. (J.S. ¶¶ 51, 52, 53.)

Snyder interviewed plaintiff, Sean Gallagher ("Gallagher"), Greg Kennedy ("Kennedy") and Jon Williams ("Williams") and considered the interview to have played a very significant part in his final selection. (Def.'s Ex. F at 395:16-20, 396:20-24; Def.'s Ex. G at 5; Def.'s Ex. A at 51:10-15; J.S. ¶¶ 39, 40.) Snyder interviewed plaintiff and Gallagher in person. (Pl.'s Ex. 5 at 2.) He interviewed Kennedy and Williams by phone and, on a subsequent occasion, interviewed Williams in person to further discuss Williams' background. (Id.) Snyder interviewed plaintiff on February 10, 2003 for a time period of forty-five minutes. (Def.'s Ex. A at 58:22-23; J.S. ¶¶ 42, 43.) He described the interview with plaintiff as being quiet and reserved, while the interview with Williams was active, lively, and involved give and take. (J.S. ¶ 65.)

Plaintiff was found to be well-qualified for the job but was not selected as the final candidate. (Id. ¶ 97.) All the other candidates were male. (Id.) Williams was selected for the position. (Id. ¶ 66.)

Snyder initially stated that he had discussed the Heroes (Homeland Emergency Response Operational Equipment Systems) project with both Williams and plaintiff and that Williams had more ideas about the project than plaintiff. (Pl.'s Ex. 5 at 8.2-8.3; J.S. ¶ 101.)*fn1 He described the Heroes project as the development of a fully integrated suit for first responders. (Id.; Pl.'s Ex. 10 at 2.) Snyder, although he took no notes during the interviews, believed that Williams had offered more insight into the ways and directs that the Heroes project could be developed. (Id.) Plaintiff, in comparison, was felt to have been too focused on the narrow area of respirators and respiratory associated functions. (Pl.'s Ex. 5 at 8.3.) Plaintiff was not asked about the Heroes or local system project during the interview. (Pl.'s Ex. 20 at 256; J.S. ¶ 102.) Snyder later recalled that he did not discuss the Heroes project with either plaintiff or Williams. (Pl.'s Ex. 10 at 1-2; Pl.'s Ex. 23; J.S. ¶ 103.) Snyder provided a different account stating that his recollection of having discussed the Heroes project with those candidates was made in error and that he did not have the Heroes project in mind when interviewing the candidates. (Pl.'s Ex. 10 at 1-2.)

Snyder selected Jon Williams for the GS-14 position. (J.S. ¶ 66.) Selectee Williams had a Ph.D. degree and had served as the lead author on at least one publication.(Id. ¶¶ 85, 86.) Williams had managed a program as a section supervisor for a team of scientists. (Def.'s Ex. G at 11-12; J.S. ¶ 64.) Snyder noted that plaintiff had more publications than Williams, but believed Williams' explanation when he said that NASA discouraged publications of research in areas that he worked. (Pl.'s Ex. 15; Pl.'s Ex. 16; J.S. ¶ 125.) One of the other male candidates, Kennedy, was deemed to be the second choice even though he did not have any peer-reviewed publications. (J.S. ¶ 131.) Snyder did not consider publications as a significant qualification for the selected candidate. (Id. ¶ 126.)

Snyder reviewed the KSAs he had received from Bailin and compared each candidate. He rated Williams as being superior in KSA number 1 which required "in-depth knowledge of the principles and methodologies related to advancing the understanding of exercise physiology responses associated with the use of personal protective technology." (Pl.'s Ex. 5 at 8.3.) Snyder also rated Williams as superior in KSA number 2 which gauged the ability of a candidate to develop new approaches, designs, methods, or techniques in physiology. (Id.) He felt that Williams' experience in management and supervisory duties gave him an advantage over plaintiff. (Id.) Snyder rated Williams and plaintiff as equal in the ability to relay scientific data. (Id.) Snyder rated plaintiff to be superior to Williams in regard to KSA number 5 which dealt with research publications. (Id.) Snyder saw William's attitude and enthusiasm to do research as enough of an asset to overcome the publication requisite. (Id.)

The reasons defendant proffered for not selecting plaintiff are: (1) she was not the best qualified candidate for the position because she did not demonstrate appropriate vision during the interview, (2) she failed to demonstrate breadth of experience in physiology, (3) Williams had described unique work with NASA Launch and Entry Spacesuit during his interview, and (4) plaintiff lacked the desired supervisory and program management experience. (Id. ¶ 99.)

On July 11, 2005, plaintiff filed a complaint with this court asserting a claim against defendant for employment discrimination based on sex in violation of Title VII and seeking damages, back page, promotion and other declaratory and injunctive relief. (Compl. at 1, 8.) On March 29, 2007, defendant filed a motion for summary judgment.

III. Standard of Review

Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A motion for summary judgment will not be defeated by the mere existence of some disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine, the court's function is not to weigh the evidence or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Id. at 249. The court may consider any material or evidence that would be admissible or usable at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st Cir.1993) (citing 10 CHARLES ALAN WRIGHT, ARTHURMILLER AND MARY KAY KANE, FEDERALPRACTICE AND PROCEDURE ยง 2721, at 40 (2d ed. 1983)); Pollack v. City ...

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