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Schultz v. Department of United States Air Force

United States District Court, W.D. Pennsylvania

February 2, 2017

JODY SCHULTZ, Plaintiff,
v.
DEPARTMENT OF UNITED STATES AIR FORCE, National Guard Bureau, Defendant. Re: ECF No. 41

          OPINION

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE

         Jody 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff 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.

         Between 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.

         Sometime 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.

         On 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.

         After 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.

         Plaintiff 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.[1] 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.

         On 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.

         Three 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.

         On 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.

         Plaintiff's 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.

         At some 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[2] 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 further.” Id.

         Plaintiff 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, ...


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