United States District Court, W.D. Pennsylvania
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE
Shultz (“Plaintiff”) has brought this action
against the Department of United States Air Force, National
Guard Bureau (“Defendant”), alleging that she was
not hired for a position as a social worker because of her
age, in violation of the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq.
Presently before the Court is Defendant's Motion for
Summary Judgment. ECF No. 41. For the reasons that follow,
the Motion will be granted.
FACTUAL AND PROCEDURAL BACKGROUND
is a 62-year-old woman with a Bachelor of Arts degree in
Criminology and a Master's degree in Educational
Counseling. ECF No. 43 ¶¶ 1-3. She is also a
certified professional counselor. Id. ¶ 4.
2011 and March 2013, Plaintiff was employed as the Director
of Psychological Health by Optimization Consulting, a private
contractor that provided counseling and other mental health
services for the Air National Guard, 171st Air
Refueling Wing in Coraopolis, Pennsylvania. In March 2013,
Goldbelt Glacier Health (“Goldbelt”) took over
the contract at the 171st Air Refueling Wing, but
Plaintiff continued to serve as the Director of Psychological
Health. While employed in this position for Goldbelt,
Plaintiff did not have any employees working under her.
Id. ¶ 10.
in 2014, Plaintiff learned that Defendant planned to end its
contract with Goldbelt on January 31, 2015, and provide its
own counseling services. Id. ¶¶ 11-12.
Thereafter, Plaintiff started to seek other employment and
applied for jobs posted on the USAJOBS website. Id.
¶ 17. She applied for two positions with the Veterans
Administration and a position as a psychologist with the Air
Force. Id. ¶¶ 18, 20. She submitted each
application through the USAJOBS website. Id.
Plaintiff was not selected for these positions. Id.
¶¶ 19, 20.
September 28, 2014, Plaintiff submitted an online application
via the USAJOBS web site for a social worker position with
the Air Force (Job Announcement Number
AFPC-MEDEH-1068623-0185). Id. ¶ 21. There were
vacancies for the position throughout the country, including
in Coraopolis. Id. ¶ 22. The announcement was
advertised with “open period” of April 1, 2014,
to September 30, 2014, and applicants were advised that
“[t]he length of time [their] application[s] will
remain active will vary based on the closing date of this
public notice.” Id. ¶ 24. The basic
requirements for the position included a “master's
degree in social work from a school accredited by the Council
on Social Work Education.” Id. ¶ 23.
Prospective applicants were also required to have a
“Clinical Social Work license to practice independently
from a U.S. jurisdiction.” ECF No. 45-4 at 20.
According to a declaration by Christine Ross, the Human
Resource Specialist for the Air National Guard, “social
workers were characterized as 0185 series employees, and the
federal hiring guidelines administered through the Office of
Management and Budget . . . required such employees to have a
master's degree in social work[.]” ECF No. 45-5
¶ 4. In addition, since “social workers would be
working independently at each National Guard Wing where they
did not have the benefit of other social workers within their
unit to consult . . . the Air Force elected to add the
additional hiring requirement that each social worker must
have a ‘Clinical Social Work license[.]'”
Id. For reasons unexplained in the record, no social
workers were hired from Job Announcement Number
FPC-MEDEH-1068623-0185. ECF No. 43 ¶ 27. Thus,
“all applications submitted under this announcement
were terminated and not carried over to subsequent job
postings or social worker vacancies within the Air
Force.” ECF No. 45-5 ¶ 4.
the “open period” for the first announcement
ended, the Air Force posted another announcement for a social
worker position with an “open period” from
October 1, 2014, to March 31, 2015 (Job Announcement Number
AFPC-MEDEH-1219383-0185). ECF No. 43 ¶ 28. The job
announcement set forth the requirements that the prospective
applicant have a “master's degree in social work
from a school accredited by the Council on Social Work
Education” and a “Clinical Social Work license to
practice independently from a U.S. jurisdiction.”
Id. ¶¶ 30-31. In order to apply,
applicants were required to complete an application package
online at the USAJOBS website by 11:59 PM (EST) on Tuesday,
March 31, 2015. Id. ¶ 33. This package was to
include a resume, occupational questionnaire, transcripts,
registration/license, and veterans' preference (if
applicable). Id. ¶ 34. The announcement made
clear that an applicant's “application package
(resume, supporting documents, and responses to the
questionnaire) will be used to determined [her] eligibility,
qualifications, and quality ranking for this position. Please
follow all instructions carefully. Errors or omissions may
affect your rating or consideration for employment.”
Id. ¶ 36. The job announcement also notified
the applicant that it was “the applicant's
responsibility to verify that the information entered,
uploaded or faxed (i.e., resume) is received, accurate and
submitted by the closing date.” Id. ¶ 35.
did not submit an application for this job announcement.
Id. ¶ 38. She testified that she thought the
application she submitted regarding Job Announcement Number
AFPC-MEDEH-1068623-0185 in September 2014 would be considered
for this vacancy because “[i]t was for the same
position” and the two announcements were “worded
the same.” ECF No. 52-1 at 5. Plaintiff did, however,
send a letter dated December 23, 2014, to Colonel Darrick
Cunningham, who she understood to be the selecting official
for the social worker position. Id. at 25. In the
letter, Plaintiff advised Colonel Cunningham that she
“wish[ed] to retain [her] position as Wing Director of
Psychological Health for the 171 ARW.” Id.
Moreover, in an email dated February 9, 2015, and addressed
to Cunningham and various others with military email
addresses (and cc'd to Plaintiff's counsel),
Plaintiff wrote, “To All: I am interested in a position
with the Air Force/Air National Guard in my capacity as an
LPC effective immediately.” ECF No. 45-8 at 9.
January 7, 2015, Plaintiff received a letter formally
notifying her that Goldbelt's contract would be ending on
January 31, 2015, and that her employment would be terminated
on that date. ECF No. 43 ¶ 13. On January 29, 2015,
Plaintiff sent an e-mail to “[a]ll [m]embers” of
the 171st Air Refueling Wing, letting them know
that January 30 would be her last day. Id. ¶
15. “I'm not leaving because I want to and I'm
not being fired[, ]” she wrote. Id. “The
position is changing and I don't have the correct
credentials to change with it.” Id. By that,
Plaintiff meant that she was told that she could not retain
her position because she was not a social worker. ECF No.
52-1 at 2.
people were eventually referred to the selecting official for
the social worker position at the 171st Air Force
Refueling Wing listed in Job Announcement Number AFPC-
MEDEH-1068623-0185: Matthew J. Dalrymple, Joshua M. Hudson,
and Bonnie B. Shultz. ECF No. 43 ¶ 41. Dalrymple, who
was born in 1975, was selected for the position and began
work on April 5, 2015. Id. ¶ 46. He is a U.S.
Army veteran with a master's degree in social work and
previously worked as a social worker for the Department of
Veterans Affairs. Id. ¶¶ 47-48.
February 5, 2015, Plaintiff, through her attorney, faxed a
letter to the National Guard to “request EEO
counselling leading to a formal complaint for age
discrimination - failure to be hired by Air National Guard/US
Air Force as of February 1, 2015.” ECF No. 45-6 at 28.
On February 19, 2015, Plaintiff submitted a “Charge of
Discrimination” to the Air National Guard, alleging
that she applied for a position for which she was qualified
but was not hired because of her age. ECF No. 44 ¶¶
3-5. She indicated therein that the alleged discrimination
took place between February 1, 2015, and February 12, 2015.
Id. ¶ 4.
request for EEO counseling was eventually brought to the
attention of Kenneth Vybiral, the Equal Employment Manager
and Equal Opportunity Advisor for the Pennsylvania National
Guard. Id. ¶ 2. On March 13, 2015, Vybiral sent
an e-mail to Plaintiff's counsel with “the forms
that a[n] EEO counselor would have to speak to complainant
[about], and assist with.” ECF No. 45-7 at 7. Vybiral
asked Plaintiff's counsel to return the forms to him once
they were completed. Id. The completed forms were
returned on March 19, 2015. Id. at 8. Thereafter,
Vybiral “contacted the resident EEO Counselor at the
171st Air Refueling Wing and had him on standby to
counsel and assist [Plaintiff] with her EEO concerns.”
ECF No. 45-9 ¶ 4.
point thereafter, Vybiral had a phone conversation with
Plaintiff's counsel. Id. According to Vybiral,
he attempted to schedule an EEO counseling session, but
Plaintiff's counsel “refused to permit anyone to
speak to [Plaintiff] (regarding EEO counseling or otherwise)
and requested that all documentation in [Plaintiff's]
case be addressed to him.” Id. Plaintiff's
counsel has submitted an affidavit in which he states that he
“informed Mr. Vybiral that [his] standard procedure is
to ask that the interview be done by written interrogatories
which should be routed through [his] office.” ECF No.
52-5 ¶ 6. Plaintiff's counsel says that he has
“followed this procedure . . . in hundreds of EEO and
EEOC investigations without issue or problem[, ]” and,
as he recalls, “Mr. Vybiral did not indicate that this
procedure was unacceptable.” Id. ¶¶
7-8. However, no interrogatories were ever sent and the
matter was never assigned a case number. Id. ¶
9. According to Vybiral, “case numbers are generally
assigned when the matter enters the formal stage which occurs
after initial counseling[.]” ECF No. 45-9 ¶ 5.
However, because of Plaintiff's “refusal to
participate in EEO counseling, her case was not processed any
initiated this action on June 29, 2015, naming both Goldbelt
and the Air Force as Defendants. ECF No. 1. On February 19,
2016, Plaintiff filed a Stipulation of Dismissal as to
Goldbelt. ECF No. 26. Following the close of discovery,
Plaintiff filed a Motion to Amend the Complaint to conform to
the evidence, in which she sought “to add her not being
selected from the Fall 2014 USA Jobs online application
process as well as the February 2015 re-posting of the same
exact position.” ECF No. 32. Defendant opposed the
motion. ECF No. 34. On June 10, 2016, the Court issued an
order denying the motion. ECF No. 35. Plaintiff filed a
motion for reconsideration, ECF No. 36, ...