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Kushmeder v. McHugh

May 14, 2010


The opinion of the court was delivered by: Judge Caputo


Presently before the Court is Defendants' Motion to Dismiss, in part, and for Summary Judgment. (Doc. 24.) For the reasons provided below, Defendant's motion will be granted in part and denied in part.



Plaintiff Judy Kushmeder began working as a WG-08 Electronics Worker at Tobyhanna Army Depot ("TYAD") in 1989. (Doc. 35 at ¶ 1.) In 2001, Plaintiff applied for a temporary not-to-exceed 5 year position as an Industrial Engineering Technician ("IE Tech"), pay grade GS-5/7/9; the selecting official for this position was Sharon Smith. (Doc. 35 at ¶¶ 2-3.) Plaintiff was selected for the position and began working as an IE Tech on February 26, 2002; she began as a GS-5. (Doc. 35 at ¶ 5-6.) The first performance review received by Plaintiff was at the "excellent" level, and Plaintiff was promoted to a GS-7 IE Tech position on March 6, 2003. (Doc. 35 at ¶ 13.)

On April 28, 2003, Plaintiff was informed that her position was being cut. Defendants contend the position was selected for elimination because the Director of Resource Management was told that there would be a cut in the Table of Distribution Allowances, which is the number of employees authorized to work in a given section. (Smith Declaration at ¶ 14.) Kushmeder believes that her position was cut in reaction to comments she had made to an Inspector General, Major Robert Myles, during a meeting they had in mid-April 2003. During this conversation with Myles, Plaintiff intimated that women had trouble getting promotions at TYAD.*fn1 Smith claims to have no knowledge of Plaintiff's conversation with Myles. (Smith Declaration at ¶ 16.) After her position was cut, Plaintiff continued to work as a GS-7 IE Tech until mid-July 2003.

In May 2005, Smith was the Chief of the Research and Analysis Division in the Directorate of Productivity, Improvement and Innovation ("PII Directorate"); at that time, Smith advertised a position vacancy for an IE Tech, GS 5/7/9. (Doc. 35 at ¶¶ 25-26.) Before the interviews were conducted for this position, Smith created a matrix in which she graded each applicant on their shop experience (scored between one and four, weighted by five), education (four points for a bachelor's degree in engineering, three points for an associate's degree in engineering, and two points for other bachelor's degrees, all weighted by three),*fn2 and interview score (five questions scored between two and four points, for a total of twenty possible points). (Doc. 31, Ex. I; Smith Declaration ¶¶ 21-27.) The applicants with the highest scores were Brenda Fiorani (49 points), Dave Marcus (44 points), and Steve Leibig (42 points);*fn3 Plaintiff finished in a seventh-place tie, with 37 points. (Doc. 34, Ex. 27.)

On July 13, 2005, Brenda Fiorani was selected for the position. (Doc. 37, Ex. Q.) Between the time these interviews were conducted and the time Fiorani was selected, another vacancy opened up for a GS-9 IE Tech.*fn4 (Doc. 30 at ¶ 47.) On July 22, 2005, Plaintiff met with John Sutkowsky, the Equal Employment Opportunity ("EEO") manager for TYAD, and raised the issue of the job vacancy not yet being filled. (Doc. 34, Ex. 28.) Plaintiff stated that she felt she was being retaliated against for her conversation with Myles and speaking to another Inspector General in 1998; however, she did not file a formal EEO complaint. Furthermore, Plaintiff admitted to having no evidence that Sharon Smith had any knowledge of this meeting with Sutkowsky. (Kushmeder Dep. 230:18-21.)

An e-mail was sent to the unsuccessful candidates on July 25, 2005, telling them that Fiorani had been selected. (Doc. 37, Ex. R.) For the newly opened position, Smith selected Liebig on July 26, 2005.*fn5 (Doc. 37, Ex. T.) On July 26, 2005, Plaintiff e-mailed Smith and asked why she had not been selected; Smith explained to Plaintiff that could improve her chances for future vacancies by working on larger variety of more complex systems. (Doc. 37, Ex. S.)

Shortly thereafter, an IE Tech position became available in the Process Engineering Division. Although Smith was the selecting supervisor for this position, she conferred with Dave Dudzinsky, the acting chief of the division, because the selection would eventually be working under Dudzinsky. (Fact Finding Investigation Transcript, 29:11-14, Jan. 26, 2006.) Dudzinsky informed Smith that he would need somebody with technical writing skills and the ability to work well with others; Smith looked at the resumes of the applicants who had previously interviewed and selected April Garrahan, Dave Marcus, and Dan Baswari as the candidates who met Dudzinsky's needs. (FFI Transcript, 30:1-31:3.) These candidates were interviewed on August 5, 2005; Garrahan was selected for the position on August 8, 2005. (Doc. 37, Ex. X.) Dudzinsky and Smith preferred Garrahan because she came across very well in the interview. (FFI Transcript, 32:21-25.) Plaintiff is female and was born in 1952. (Doc. 35 at ¶ 1.) The other pertinent candidates birth dates and genders are as follows: Brenda Fiorani (female born in 1969), Leibig (male born in 1969), and Garrahan (female born in 1976).


On September 1, 2005, Plaintiff filed a formal complaint of discrimination. (Doc. 37, Ex. AA.) On February 6, 2008, Administrative Law Judge Julie Todd ruled in favor of the agency of Defendants on Planitiff's claims of discrimination on the basis of age, sex, and prior EEO activity; this decision was made final on March 17, 2008. (Doc. 37, Exs. BB, CC.)

On May 30, 2008, Plaintiff filed the instant Complaint. (Doc. 1.) Plaintiff brought causes of action alleging that her non-selection for the three positions in question constituted age discrimination in violation of the Age Discrimination in Employment Act (Count I), Gender Discrimination in violation of Title VII (Count II), and retaliation for engaging in protected EEO activity (Count III). On February 22, 2010, Defendants filed the instant motion seeking to dismiss Plaintiff's claims for disparate impact,*fn6 and seeking summary judgment on all of Plaintiff's remaining claims. This has been fully briefed and is currently ripe for disposition.



Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded "enough facts to state a claim to relief that is plausible on its face," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations "'to raise a reasonable expectation that discovery will reveal evidence of'" each necessary element, Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth information from which each element of a claim may be inferred). In light of Federal Rule of Civil Procedure 8(a)(2), the statement need only "'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555). "[T]he factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8." Phillips, 515 F.3d at 232; see also Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007).

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). The Court may also consider "undisputedly authentic" documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n.13 (3d Cir. 1998), or credit a complaint's "'bald assertions'" or "'legal conclusions,'" Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).

When considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint ...

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