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McMullen v. Mattis

United States District Court, M.D. Pennsylvania

September 8, 2017

GARY McMULLEN, Plaintiff



         I. Introduction

         Plaintiff 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[1] 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.

         II. Procedural History

         On December 11, 2015, Plaintiff filed a complaint against Defendant James Mattis[2] 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[3] 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).

         On 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[4] 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 5, 7).

         In 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).

         III. Standard of Review

         Federal 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 (1986)).

         A party 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 omitted).

         Once 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.

         IV. Background

         Judged 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.

         A. Plaintiff

         Plaintiff 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).

         B. Realty Specialist Opening & Behavior Based Interviewing

         On June 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).

         John 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).

         The JOA 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).

         BBI “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).

         C. Realty Specialist Selection Process & Plaintiff's Application

         In July 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[5]; 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).

         As part 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.[6] (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).

         In 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 ...

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