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Puntillo v. Mineta

May 19, 2009

RONALD V. PUNTILLO, PLAINTIFF
v.
NORMAN T. MINETA, SECRETARY U.S. DEPARTMENT OF TRANSPORTATION, DEFENDANT



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

JUDGE SYLVIA H. RAMBO

MEMORANDUM

Plaintiff Ronald V. Puntillo sues his federal employer, the Federal Aviation Administration ("FAA") alleging that it violated Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") by retaliating against him for his participation and cooperation in an Equal Employment Opportunity ("EEO") claim of a female co-worker for sexual harassment and discrimination. Specifically, Plaintiff alleges that he suffered reprisals of purposeful failure to promote him to the position of assistant manager of the Harrisburg Flight Standards District Office ("Harrisburg FSDO"), and by continual attempted interference with his work duties and assignments. Before the court is Defendant's motion for summary judgment on all claims. (Doc. 53.) For the reasons that follow, the court will grant Defendant's motion.

I. Background

A. Facts

Viewed in the light most favorable to Plaintiff, the facts are as follows. Plaintiff Ronald V. Puntillo began working for the FAA in 1989. (Pl.'s Ex. 33, Puntillo Dep't of Trans. Aff. 1.) At all times relevant to this case, Puntillo was one of the most senior non-management employees*fn1 at the Harrisburg FSDO. (Id.; Pl.'s Ex. 49-1, Bailey Dep. 36.)

From 1998 through 2001, Puntillo assisted a co-worker, Brenda Bailey, with her complaint to the Equal Employment Opportunity Commission ("EEOC"). (Def.'s Ex. A, Puntillo Dep. 54.) Bailey's complaint to the EEOC was against Daniel Moyer and was resolved by settlement on April 4, 2001. (Def.'s Ex. C, Resolution Agreement.) On April 24, 2000, Puntillo filed an EEOC complaint of his own against Daniel Moyer alleging that he has been subject to a hostile work environment based upon age and reprisal. (Puntillo Dep. 52.) On April 20, 2001, the EEOC issued a final agency decision on Puntillo's complaint and found no discrimination. (Def.'s Ex. B, Report of Investigation at 3.)

From February 11, 2001 through July 14, 2001, Larry Kreider was the acting manager of the Harrisburg FSDO. (Def.'s Ex. D, Kreider Decl. ¶¶ 2-3.) On or about February 14, 2001, the FAA posted Vacancy Announcement Number AEAAFS-01-26-55102 seeking a permanent manager of the Harrisburg FSDO. (Pl.'s Ex. 6 at 2.) Both Puntillo and James J. Stevenson submitted bids for the manager position. (Id. at 38.) Puntillo was determined to be qualified for the manager position and Stevenson was not; however neither individual was selected. (Id. at 42.) On July 15, 2001, Kreider was non-competitively permanently assigned to the manager position. (Kreider Decl. ¶¶ 2-3.)

1. The Assistant Manager Vacancy

On May 16, 2001, the FAA posted vacancy announcement AEA-AFS-01-39-56730 seeking a supervisory aviation inspector, whose duties would be to serve as the assistant manager of the Harrisburg FSDO. (Def.'s Ex. E, Vacancy Announcement.) This announcement was prepared by Catherine Harris, a personnel management specialist in the FAA's Eastern Region Human Resources Management Division. (Def.'s Ex. H, Harris Aff. ¶ 4.) To qualify for this position, an applicant needed to "possess one year of specialized experience which is in or directly related to the line of work of the position to be filled and which has equipped the candidate with the particular knowledge, skills, ability and other characteristics (KSAOs) to successfully perform the duties of the position." (Vacancy Announcement at 1.) In response to a vacancy announcement, applicants submit their documentation to human resources. (Def.'s Ex. F, FAA Eastern Region Selection Process Guide dated April 2001 at 3; Def.'s Ex.G, EEOC Tr. at 48:9-11, May 4, 2002.)

Twenty applicants applied for the assistant manager position, including Puntillo and Stevenson. (Puntillo Dep. 21:14-22; Harris Aff. ¶¶ 6-7.) All applications were submitted to Harris who evaluated the application packages to determine which applicants were minimally qualified for the assistant manager position. (Harris Aff. ¶4.) Harris was not aware that Puntillo had engaged in EEO activity. (EEOC Tr. 226:25, 227:1-2.) Harris initially determined that eleven of the applicants were minimally qualified. (Harris Aff. ¶ 7.) Harris was unable to determine whether three of the applicants, including Stevenson, were minimally qualified because each listed prior military experience as satisfying the necessary requirements of the announcement. (Id.) Thus, she requested that a subject matter expert be appointed by human resources to review those applications. (EEOC Tr. 218:15-22.) Harris had no input as to who was selected as the subject matter expert, and did not question expert's opinion about whether any of the individuals referred were or were not minimally qualified. (Id. at 219:7-9, 219:21-220:1.)

a. Subject Matter Expert

Harris' request for a subject matter expert went to Ronnie Chin of the Resource Management Branch of the FAA Eastern Region Flight Standards Division who appointed David Bowden as the subject matter expert to review the three applications referred by Harris. (Def.'s Ex. I, Chin Aff. ¶ 9.) Neither Chin nor Bowden was aware that Puntillo engaged in prior EEO activity at the time of Bowden's appointment as the subject matter expert.*fn2 (Id. at ¶ 14; EEOC Tr. 164:23-25, 165-1-3.) In making his determination, Bowden looked at the positions the individuals held outside of the FAA to determine whether the supervisory responsibilities of those positions are equivalent to someone within the FAA supervising a person that is a GS 13 inspector. (EEOC Tr. 160:8-15.) As to Stevenson, Bowden sought the assistance of Phillip Ide, a co-worker who had 30 years of military experience, because there was terminology in Stevenson's application with which Bowden was not familiar. (Id. at 162:17-25, 163:1-4.) After speaking with Ide, Bowden determined that Stevenson was minimally qualified. (Id.) Ide did not know of Puntillo's prior EEO activity at the time he assisted Bowden. (EEOC Tr. 173:12-16.) Bowden was permitted to speak with Ide in making his determination that Stevenson was minimally qualified for the assistant manager position. (Chin Aff. ¶ 7.) Bowden determined that Stevenson and another of the referred applicants had the requisite experience to minimally qualify for the assistant manager position and notified Chin by e-mail.*fn3 (Harris Aff. ¶¶12-13.) Chin informed Harris of Bowden's decisions and Harris included these two in the certificate of eligible candidates that she referred to Kreider, the manager of the Harrisburg FSDO and the selecting officer for the search. (Id. at ¶ 4; Def.'s Ex. L, Certificate of Eligible Candidates.)

b. Interview Selection Process

Kreider learned for the first time who had applied for the assistant manager position at the time he received the list of qualified applicants from Chin. (EEOC Tr. 24:1-8.) Kreider did not assist in preparing the job vacancy announcement, the initial evaluation of the candidates, preparing the list of eligible candidates, the decision to send Stevenson's application to a subject matter expert, or in the selection of the subject matter expert. (Def.'s Ex. D., Kreider Decl. ¶¶ 8-10; Harris Aff. ¶ 5.) Kreider, as the selecting officer, had the discretion to decide whether the candidates would be ranked and rated by human resources or whether all of the candidates would be referred to him for review and selection. (Def's Ex. N, FAA's Human Resources Operating Instructions, Method of Evaluating Candidates at 3.) Kreider chose to have all of the minimally qualified candidates referred to him rather than rated and ranked. (Kreider Decl. ¶ 14; EEOC Tr. 22:20-25, 23:1-3.)

Once the candidates were referred, Kreider had the discretion whether to interview all, some, or none of the candidates who were qualified. (Def.'s Ex. O, FAA's Human Resource Policy Manual, Interview Policy 1.8 at ¶ 1.) Kreider chose to interview all thirteen of the minimally qualified applicants. (Kreider Decl. ¶ 14; EEOC Tr. 22:20-25, 23:1-3.) Kreider also had the discretion to conduct the interviews himself or with the assistance of a panel. (Def.'s Ex. F, FAA Easter Region Selection Process Guide, April 2001 at 11.) Kreider elected to conduct panel interviews and chose three panel members: Richard Madden, Marian Clemens, and Neil Holtzer. (Kreider Decl. ¶¶ 18-20.) None of the panel members was from the Harrisburg FSDO and two of them-Madden and Clemens-knew nothing of Puntillo's EEOC activity. (Def.'s Ex. Q, Maddan Decl.; EEOC Tr. 153:19-21.)

c. The Interviews

The interviews were initially scheduled to be conducted on September 11, 2001 in New York City at the FAA's Eastern Region Office. That morning Kreider learned that Neil Holtzer could not sit on the panel. (Def.'s Ex. P, Kreider Dep't of Trans. Aff. at 3-4; Def.'s Ex. R, Kreider Dep. 155:14-21, 156:2-6, Jan. 4, 2008.) Rather than have only two interviewers, Kreider decided to sit on the panel as well. (EEOC Tr. 50:2-17; Kreider Dep't of Trans. Aff. at 4; Kreider Dep.154:12-16, 158:10-18, Jan. 4, 2008.) Prior to the interviews, the panel selected thirteen questions from various lists that were prepared by FAA's human resources department. (Kreider Dep. 160, 161, Jan. 4, 2008.) Prior to the day of the interviews, Kreider did not review the bid packages with anyone, including the two other members of the panel. (Kreider Decl, ¶25.)

The interviews began on September 11, 2001 in New York City but were stopped after only two candidates were interviewed because of the attack on the World Trade Center. (EEOC Tr. 51, 152.) The interviews resumed in October 2001 at the Allentown Flight Standards District Office. (Id. at 70.) All thirteen of the candidates were interviewed and all were asked the same questions. (Id. at 50, 79-80, 152-153.) The interviewers rated the candidates answers to each question on a scale of 1 to 5 with one being the lowest and 5 being the highest. (Id. at 52, Def.'s Exs. S, T, U.) Each panel member independently scored each candidate, and the members did not collaborate in scoring any of the candidates. (Kreider Decl. ¶¶ 29-30; EEOC Tr. 80, 152-153.) The panel did not discuss the specific scores of each applicant after each interview, rather they waited until all the interviews were completed and all of the panel members completed their scoring to discuss and compare scores. (Kreider Decl. ¶¶ 35-36; EEOC Tr. 71:14-19.) However, after Puntillo's interview one of the panel members commented to Kreider after Puntillo left the room that "there was a lot of anger in [Puntillo's] answer" to one of the questions. (Pl.'s Ex. 37, Kreider Dep't of Trans. Aff. 7.)

d. Selection of the Assistant Manager

After all of the interviews, Kreider added all of the scores for each candidate. (EEOC Tr. 71.) Of the thirteen candidates, each panel member individually rated Kenneth Shuman ("Shuman") the highest with an aggregate score of 158. (Def.'s Ex. V, Panel Interview Results.) Kreider offered the assistant manager position to Shuman in December 2001 but Shuman declined the job. (EEOC Tr. 56.) Kreider then offered the job to Stevenson who was the applicant with the second highest aggregate interview score: 143.5. (Id. at 54; Def.'s Ex. V.) Stevenson accepted the position and became the assistant manager at the Harrisburg Flight Standards District Office on January 27, 2002. (Def.'s Ex. L, Official Notification of Selectees.) Puntillo scored seventh out of the thirteen candidates with a total score of 96.5. (Def.'s Ex. V.) Madden attests that he "was not told, asked, or influenced by Mr. Kreider or anyone else to give Mr. Puntillo lower scores than were merited by his answers." (Def.'s Ex. Q, Madden Decl.) During the EEOC hearing, Clemens testified that no one exerted any influence over his decision to give Puntillo the scores that he gave. (EEOC Tr. 153.) At the time that he selected Stevenson, Kreider was aware that Puntillo had engaged in prior EEO activity in 2000. (Kreider Dep't of Trans. Aff. 1.) At the time he was selected as assistant manager, Stevenson was aware that Puntillo had engaged in prior EEO activity in 2000. (Def.'s Ex. AA, Stevenson Dep't of Trans. Aff. 1.)

e. Puntillo's EEOC Complaint

On January 15, 2002, Catherine Harris informed Puntillo by letter that he was not selected for the Harrisburg FSDO assistant manager position.*fn4 (Pl.'s Ex. 18 at 1.) On or about January 18, 2002, Puntillo contacted Defendant's Human Resources Department to formally complain about his non-selection as manager. (Pl.'s Ex. 18, at 2; Def.'s Ex. X.) The parties unsuccessfully attempted to resolve the complaint through alternative dispute resolution on April 17, 2002. (Def.'s Ex. X, at 4.) On April 30, 2002, Puntillo filed an EEOC complaint challenging his non-selection for the assistant manager position. (Pl.'s Ex. 18 at 21-22.)

2. Events After Stevenson was Selected ...


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