United States District Court, W.D. Pennsylvania
Stewart Cercone United States District Judge
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.
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 He has since withdrawn his disability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).
following facts are undisputed except where otherwise noted.
All reasonable inferences have been drawn in favor of
Plaintiff, the non-moving party.
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.
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.
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. 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.
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
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).
Summary Judgment Standard
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
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
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