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Twentier v. Shulkin

United States District Court, W.D. Pennsylvania

July 18, 2017

LARRY TWENTIER, Plaintiff,
v.
DAVID J. SHULKIN, [1] Secretary of the Department of Veterans Affairs, Defendant.

          MEMORANDUM OPINION

          David Stewart Cercone United States District Judge

         I. Introduction

         Larry Twentier brings this employment discrimination action against the Secretary of the Department of Veterans Affairs, alleging that his non-selection for two positions at the Butler Veterans Administration Medical Center (“Butler VA”) constituted retaliation under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. Now pending before the Court is Defendant's motion for summary judgment, with a brief, concise statement of material facts (“CSMF”), and appendix in support. (ECF No. 30-33). Plaintiff filed a response in opposition, along with a response to Defendant's CSMF, and a statement of additional facts. (ECF Nos. 37-39). Defendant filed a reply and a response to Plaintiff's statement of additional facts. For the reasons set forth below, Defendant's motion will be granted.

         II. Background

         Plaintiff initiated this action on July 15, 2015, alleging claims for disability discrimination and retaliation under the Rehabilitation Act. He has since withdrawn his disability discrimination claims. (Pl.'s Pretrial Stmt. at 5).

         The following facts are undisputed except where otherwise noted. All reasonable inferences have been drawn in favor of Plaintiff, the non-moving party.

         By way of background, Plaintiff has a bachelor's degree in science and psychology and a master's degree in justice administration. He was on active duty in the Air Force from 1985 until 1997, when he went on disability retirement. He fully retired from the Air Force in 2001.

         Plaintiff was hired as a Domiciliary Assistant at the Butler VA on December 6, 2009. On January 25, 2011, the Office of Personnel Management instructed the Butler VA to terminate Plaintiff after determining that he had been untruthful in his Declaration for Federal Employment. As a result, Plaintiff was placed a three-year period of debarment, during which he was ineligible for competitive service federal jobs. After his termination, Plaintiff filed an EEO complaint and a federal lawsuit, alleging disability discrimination, which settled in in 2012. See Civ. A. No. 11-1337 (W.D. Pa.).

         After the end of the debarment period on January 24, 2014, Plaintiff applied for and was not selected for the positions of Telephone Operator and Program Support Assistant at the Butler VA.[2] The Telephone Operator position was posted from March 13, 2014, through March 26, 2014. The Program Support Assistant position was announced and cancelled twice near the end of the 2013-2014 fiscal year. Once funding was secured, however, the hold on filling the position was lifted and recruiting continued.

         Applicants for these positions were initially screened by the Human Resources (“HR”) department at the Butler VA, and the applicants who were deemed qualified were then interviewed by a three-person panel. Plaintiff was not referred for an interview for either position. There is no evidence in the record about how candidates were referred for interviews, such as who conducted the initial screening or how applicants were rated. The successful applicant for each position was the highest-ranking applicant after interviews were conducted.

         During the relevant time, Christine Bruns was the HR Officer and Seth Coyle was an HR Specialist at the Butler VA. Both were aware of Plaintiff's prior discrimination complaint. Plaintiff believes that Bruns and Coyle, along with unidentified “managers” and “administrators” at the Butler VA, did not want to hire him for the positions at issue because of his prior complaint. When asked what made him believe that Coyle wanted to retaliate against him, Plaintiff testified that Coyle “was told by his bosses in HR, Christine Bruns and the managers above him, ” to retaliate against Plaintiff “[b]ecause the EEO suits make everybody look bad.” (Pl.'s Dep. at 49: 7-15). When asked whether he had any other basis for thinking that Coyle “wanted to retaliate against [him] for having filed EEO complaints, ” Plaintiff testified, “At this time I don't remember.” (Id. at 50:5-8). With respect to Bruns, Plaintiff testified that he believes she retaliated against him because after the Program Support Assistant position was posted, “Attorney Sanders received a letter from [her] from 11/14 stating that the position was no longer being offered, that it was in fact closed. However, in March of '15, a few months later, Stella Heupel got the job.” (Id. at 51:25-52:1-4). Other than that, Plaintiff agreed that he had no other basis to believe that Bruns wanted to retaliate against him. (Id. at 52:20 (“I don't. That's all I have.”)). While Plaintiff testified that he believes that Bruns and Coyle were working with others (“HR, their manager and also the people they report to, administrators of the VA Medical Center”) to ensure that he was not selected for the Telephone Operator and Program Support Assistant positions, he could not identify those other individuals by name or otherwise or explain their role in the hiring process. (Id. at 53:7-11).

         III. Summary Judgment Standard

         Summary judgment is appropriate only where there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Issues of fact are genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Material facts are those that will affect the outcome of the trial under governing law. Anderson, 477 U.S. at 248. In ruling on a motion for summary judgment, the Court's role 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.” American Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). “In making this determination, ‘a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.'” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).

         The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the party opposing summary judgment “may not rest upon the mere allegation or denials, ” but “must set forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp., 260 F.3d 288, 232 (3d Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 n.11 (1986)). An issue is “genuine” if there is “more than a scintilla of evidence” the non-movant's position - ...


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