United States District Court, M.D. Pennsylvania
WILLIAM W. CALDWELL UNITED STATES DISTRICT JUDGE.
Gary McMullen is suing the Defense Logistics Agency (DLA), an
agency of the Department of Defense (DoD), for employment
discrimination on the basis of age and disability after he
was interviewed and turned down for a promotion to a Realty
Specialist position. Before the court is the
Government's motion (Doc. 22) for summary judgment. The
Government argues that no record evidence connects
Plaintiff's non-selection for the Realty Specialist
position to either his age or disability. For the reasons
that follow, we will grant the Government's motion.
December 11, 2015, Plaintiff filed a complaint against
Defendant James Mattis in his official capacity as Secretary of
the DoD claiming age and disability discrimination in
employment; Plaintiff was born in 1954 and suffered a leg
amputation as a result of a work-related accident in 1984.
(Doc. 1 ¶¶ 1-2, 8, 11-12). According to the
complaint, Plaintiff has been employed by the DLA since 2003
and works as a Lead Supply Technician at the DLA's
Susquehanna Defense Distribution Center in New Cumberland,
Pennsylvania (Distribution Center). (Id.
¶¶ 9-13). The DLA is an agency of the DoD that
provides worldwide logistics support to the United
States' Military, the Unified Combatant Commands, and
other federal agencies, foreign governments, and
international organizations. (R. 197). Plaintiff's
complaint alleges that, since joining the DLA, he has
routinely been turned down for promotions. (Doc. 1
¶¶ 13-15). In particular, Plaintiff alleges that
when he was turned down for a promotion to
Realty Specialist in 2014, the DLA discriminated
against him based on his age and disability in violation of
the Age Discrimination in Employment Act (ADEA), 29 U.S.C.
§ 633a, and the Rehabilitation Act of 1973, 29 U.S.C.
§ 791. (Id. ¶¶ 16-37).
April 21, 2017, the Government filed the instant motion for
summary judgment. (Doc. 22). In its motion, the Government
argues that it is entitled to judgment as a matter of law
because the record demonstrates that Plaintiff's
non-selection for the position bears no connection to his age or
his disability. (Doc. 23). Specifically, the Government
argues: (1) that Plaintiff has not established a prima
facie case of disability discrimination because the
record is devoid of evidence of a causal connection between
Plaintiff's disability and his non-selection for the
position; and (2) that Plaintiff's age discrimination
claim fails because the DLA has proffered a legitimate
non-discriminatory reason for Plaintiff's non-selection
which Plaintiff cannot rebut as pretextual. (Id. at
opposing summary judgment, Plaintiff “does not dispute
that he is unable to establish a prima facie case of
disability discrimination, ” but argues that he has
established age discrimination under the ADEA because he can
rebut the Government's non-discriminatory reason as
pretext for illegal age discrimination. (Doc. 29 at 4).
Specifically, Plaintiff argues that the selection process for
the position was a “sham” and was “designed
to conceal an illegal, discriminatory motive.”
(Id. at 15).
Standard of Review
Rule of Civil Procedure 56 permits a court to enter summary
judgment if the moving party “shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). Material facts are those “that could affect the
outcome” of the proceeding, and “a dispute about
a material fact is ‘genuine' if the evidence is
sufficient to permit a reasonable jury to return a verdict
for the non-moving party.” Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
moving for summary judgment has the initial burden of stating
the basis for the motion and identifying those portions of
the record-depositions, documents, affidavits, admissions,
interrogatory answers, or other materials-that it believes
demonstrate an absence of a genuine dispute of material fact.
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364
F.3d 135, 145 (3d Cir. 2004) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)); Fed.R.Civ.P.
56(c)(1)(A). “Although the initial burden is on the
summary judgment movant to show the absence of a genuine
issue of material fact, ‘the burden on the moving party
may be discharged by showing-that is, pointing out to the
district court-that there is an absence of evidence to
support the nonmoving party's case' when the
nonmoving party bears the ultimate burden of proof.”
Conoshenti, 364 F.3d at 140 (quoting Singletary
v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d
Cir. 2001)). In assessing whether the moving party satisfied
its burden, “we do not engage in credibility
determinations, and we view the facts and draw all reasonable
inferences in the light most favorable to the
nonmovant.” Pearson v. Prison Health Serv.,
850 F.3d 526, 533 (3d Cir. 2017) (internal citations
the moving party shows an absence of evidence to support the
nonmoving party's claims, then the nonmoving party must
rebut the motion with facts in the record and cannot rest
solely on assertions in the pleadings. See Berckeley Inv.
Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).
The nonmoving party must present affirmative evidence that
must be adequate as a matter of law to sustain a judgment in
its favor; the evidence must not be colorable, conclusory, or
speculative. Davis v. Pa. Tpk. Comm'n, 204
F.Supp.3d 793, 800 (M.D. Pa. 2016) (citing Anderson,
477 U.S. at 249-50). If the nonmoving party “fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden at trial, ” summary judgment
is appropriate. Celotex, 477 U.S. at 322.
against these legal guideposts, we review the record facts
and draw all reasonable inferences in a light most favorable
to Plaintiff. The following is the record for purposes of
summary judgment based on the parties' statement and
counter-statement of material facts, along with the evidence
submitted in support.
was born in 1954 and has had a disability since 1984, when
his right leg was amputated up to the knee as a result of a
work-related accident. (R. 35-37; Doc. 29-1 ¶ 3). In
1985, Plaintiff received his real estate license and worked
as a full-time realtor for over one year. (Doc. 29-1 ¶
5). Plaintiff then worked as a realtor “on the
side” while serving the Adams County Sheriff's
Department as a deputy sheriff for fifteen years. (R. 10-12).
On December 3, 2003, Plaintiff was hired by the DLA at the
Distribution Center. (R. 9; Doc. 29-1 ¶ 1). Plaintiff
was originally hired as a “scrapper, ” then
worked as an airline of communication builder for one year,
and then worked as a transportation assistant for another
year. (R. 11). Since 2006, Plaintiff has served the DLA as a
Lead Supply Technician and has worked in that capacity for
over ten years. (R. 10; Docs. 29-1 ¶ 4; 29-2 at 65-67).
Upon being hired in 2003, Plaintiff stopped working as a
realtor and put his real estate license in escrow; the
license later expired “because [he] did not use
[it].” (R. 13; Doc. 29-1 ¶¶ 6-7).
Realty Specialist Opening & Behavior Based
24, 2014, the DLA posted a job opportunity announcement (JOA)
for a Realty Specialist at the Distribution Center. (R.
197-201; Doc. 29-1 ¶ 8). According to the JOA, the
Knowledge, Skills, and Abilities (KSAs) required for the
position included: “knowledge of a wide range of real
estate principles, concepts, and practices”; written
and oral communication skills; and the ability to
“analyze requests for property” and to
“research, negotiate, and enter into and terminate
permits, licenses, leases, and other real estate
instruments.” (R. 199). Beyond these broad
pronouncements, the JOA provided specific job duties for the
position, noting that a Realty Specialist performs a
“wide variety of duties relative to the acquisition,
management and disposal of real property, ” including:
ensuring DLA real estate instruments were accurate and
current; updating data in the real estate module of an
Enterprise Business System; negotiating contracts, leases,
and agreements; interpreting and applying laws and
regulations relevant to DLA real estate transactions;
conducting inventories, utilization surveys, and/or
compliance inspections of new construction; offering property
management recommendations; and providing real property
management and financial accountability assistance to the
DLA's installation support director. (Doc. 29-1
¶¶ 9-10; R. 197-98, 205-07).
Carson was ultimately responsible for selecting the
successful applicant for the position. (Doc. 29-1 ¶ 64;
R. 123, 292). Carson relied solely on the recommendations of
Mary Ellen Hotovcin and Patricia Essig in selecting a
candidate. (Doc. 29-1 ¶ 67; R. 237, 294, 299-300).
Hotovcin was born in 1951 and served in a supervisory
capacity for the DLA as the business office chief at the
Distribution Center until she retired in September 2016.
(Doc. 29-1 ¶ 12; R. 103-07). Essig, the outgoing Realty
Specialist at the Distribution Center, was supervised by
Hotovcin, served in that role from 2012 to 2016, and was
sixty-two years old during the selection process to fill her
position. (Doc. 29-1 ¶ 13; R. 160, 250-51).
for the position advised candidates that their applications
would be “reviewed to ensure you meet the basic
eligibility and qualifications requirements, ” and that
“[a]pplicants that are found among the most highly
qualified may be referred to the hiring official for
consideration, and you will receive a notification of
referral.” (R. 199). According to the JOA, the
selecting official “may choose to conduct interviews,
” and “[i]f interviews are conducted, DLA uses a
technique called Behavior Based Interviewing (BBI).”
(R. 199). These pronouncements comported with the policies of
the DLA's Merit Promotion Program. (R. 178-80).
“is a structured, practical interviewing
approach” during which interviewees are asked to
recount their behavioral responses to certain scenarios. (R.
54- 97, 184, 305). BBI gauges how individuals “think on
their feet” and “react in different
situations.” (R.109). BBI was considered by the DLA to
be “a best practice for ensuring that candidates are
selected based on the competencies needed to do the
job.” (R. 184). The “premise behind BBI is that
past behavior predicts future performance.”
(Id.) Since October 12, 2005, BBI was established as
the “uniform interviewing approach within the
[DLA].” (Id.) The DLA's hiring and
promotion policies mandated that “if the decision is
made to conduct interviews, hiring managers will use behavior
based interview techniques during the interview
process.” (Doc. 29-1 ¶ 24; R. 167, 180, 184).
Realty Specialist Selection Process & Plaintiff's
2014, Plaintiff submitted his application for the position.
(R. 31-33). When he applied, Plaintiff's resume appears
to have indicated that he was exempt from selective service
because he was born before January 1, 1960; his resume did
not include that he currently worked for the DLA at the
Distribution Center. (R. 14-15, 31). Believing that the
position “would be basically for a realtor” and
that a Realty Specialist for the DLA bought and sold,
Plaintiff highlighted in his application his experience as a
realtor and his education, training, and affiliations in real
estate. (Doc. 29-1 ¶ 19; R. 16, 31-33).
of the selection process for the position, Human Resources
(HR) for the DLA determined the candidates who were
pre-qualified. (R. 129, 304). HR deemed eleven applicants,
including Plaintiff, to be “best qualified.”
(Doc. 29-1 ¶ 11; R. 38, 53, 129, 178-79). The eleven
candidates' resumes were made available to Hotovcin and
Essig, who both reviewed them. (Doc. 29-1 ¶¶ 26, 50;
R. 117, 129143, 259, 299). Hotovcin was advised by HR to do
“telephone interviews since there was a large number of
candidates, ” to narrow the candidates down to
“those that you . . . would be interested in, ”
and to then have those candidates interviewed in-person.
(Doc. 29-1 ¶ 25; R. 119). After reading the
applicants' resumes, Hotovcin and Essig conducted phone
interviews with the eleven candidates. (Doc. 29-1
¶¶ 12-13, 26; R. 118, 253, 256). Hotovcin decided
when to conduct the phone interviews and did not give any
candidates advance notice; no DLA rule or regulation required
such notice. (Doc. 29-1 ¶ 27-28, 33; R. 119-20). Essig
and Hotovcin conducted “cold call” interviews of
the applicants from an office telephone; the phone was put on
speaker so that Hotovcin could ask questions, but both Essig
and Hotovcin could hear and evaluate the candidates'
responses. (Id.; R. 132-33, 255-56).
accord with the DLA's hiring policies, Hotovcin and Essig
used BBI when interviewing the candidates. (Doc. 29-1
¶¶ 21, 23; R. 124, 150-51, 254, 302, 345, 347,
352). Hotovcin was trained in BBI and had always conducted
interviews using the technique. (Doc. 29-1 ¶ 22; R.
106-08, 125, 253). During the phone interviews, Hotovcin and
Essig asked the same four behavior based questions which were
randomly selected from a list of ten possible questions.
(Doc. 29-1 ¶ 34; R. 54-97, 132, 135, 254, 278). The
following questions were asked of all eleven candidates: (1)
Describe a time when you worked on several tasks at the same
time. How did you prioritize them? What was the outcome? (3)
Describe a situation in which you computerized a manual task?
(5) Tell me about a time when you ...