United States District Court, M.D. Florida, Orlando Division
ANTOON II, UNITED STATES DISTRICT JUDGE.
action brought under Title VII of the Civil Rights Act of
1964, Eyvette Hutchinson, an African-American female veteran,
claims that Defendant Secretary, Department of Veteran
Affairs Agency (the "VA") subjected her to race and
gender discrimination by failing to promote her to a
Personnel Security Specialist position in 2011. (Compl., Doc.
1). The VA now moves for summary judgment on all of
Hutchinson's claims. (Doc. 27). Hutchinson has filed a
Response in opposition to the VA's motion, (Doc. 28), and
the VA has replied, (Doc. 33). For the reasons that follow,
the VA's motion is granted.
Background A. Hutchinson's Employment
with the VA
career with the VA began in 2008, when she obtained
employment at the Orlando VA Medical Center (the
"Center"). (Hutchinson Dep.,  Ex. B to Mot.
Summ. J., at 41). The VA hired Hutchinson as a GS-5 Program
Support Assistant for Mental Health and promoted her to a
GS-6 Program Support Assistant for Mental Health Intensive
Case Management in June of 2009. (Id. at 41-42). In
2012 or 2013, Hutchinson was promoted again, this time to a
GS-9 Program Specialist for Associated Health in Education,
(Id. at 41-43). Hutchinson still works in that
position, though now as a GS-11. (Id. at 42-44).
This case, however, concerns Hutchinson's non-selection
for a position she applied for in 2010.
Personnel Security Specialist Vacancy Announcement
November 29, 2010, the VA opened a vacancy announcement for a
GS-9 Personnel Security Specialist position because the
Center needed to provide "PIV"security badges to
approximately 2000 employees by March 31, 2013. (Skala Dep.,
Ex. D to Mot. Summ. J., at 7). Additionally, at that time,
the Center was in the process of activating a new medical
center, which would add approximately 1, 300 new hires who
would also require PIV security badges. (Id.; Greene
Dep., Ex. E to Mot. Summ. J., at 27-28).
vacancy announcement expressly required that each applicant
possess "one year of specialized experience equivalent
to at least GS-7 grade level" and defined specialized
experience as "progressively responsible
intelligence-related security work directly related to the
position." (Ex. C to Mot. Summ. J., at 3). Applicants
were also required to have "technical competence in
automated information systems, " including e-Quip-a
system that collects sensitive data from a current or
prospective VA employee and facilitates the process of
security badging. (id.; Skala Dep. at 8). To apply
for the position, applicants were instructed to submit,
inter alia, a resume and responses to four screening
questions on or before December 10, 2010. (Ex. C to Mot.
Summ. J., at 5).
Hutchinson's Application and the Selection
timely applied for the Personnel Security Specialist position
on December 9, 2010. (See Ex. B-11 to Mot. Summ. J.,
at 2-20) (Hutchinson's "Application for Promotion or
Reassignment")). After the vacancy announcement closed,
Lisa Hargett, the Human Resources Staffing Specialist,
determined that twenty-nine applicants, including Hutchinson,
minimally qualified for the position. (See Skala
Decl., Ex. G to Mot. Summ. J., ¶¶ 4, 7; see
also Ex. B-2 to Mot. Summ. J., at 3). Hargett then
referred all twenty-nine applicants to Tracy Skala, the Chief
of Human Resources for the Center and the selecting official
for the position. (Skala Decl., Ex. G to Mot. Summ. J.,
¶¶1. 5). In her capacity as the selecting official,
Skala reviewed and scored each applicant, (Id.
¶ 5). Skala's scores were then used to determine who
among the qualified applicants would be interviewed by a
hiring panel comprised of: (1) Joseph Greene, then Assistant
Human Resources Officer at the Center; (2) Stephen Sabol,
Jr., Chief of Police at the Center; and (3) Skala.
(Id. ¶¶ 5-6).
February 8, 2011, in the midst of the selection process,
Hutchinson sent Davina Cook, the Human Resources Assistant of
Staffing and Recruitment, an email inquiring about the status
of her application. (See Ex. B-2 to Mot. Summ. J.,
at 3). Cook responded that same day, informing Hutchinson
that "[Skala] [was] preparing to call the interviewee(s)
for an interview." (Id. at 2-3). Hutchinson
messaged Cook again on February 28, 2011, inquiring whether
interviews were still pending. (Id.). Cook
responded, "Yes-Management [has] all of the
thereafter, three of the twenty-nine minimally qualified
applicants were invited for an interview. (Skala Decl., Ex. G
to Mot. Summ. J., ¶ 7). Hutchinson was not among those
interviewed. (Hutchinson Dep. at 79). At the conclusion of
the three interviews, the hiring panel selected Ross Holman,
a white male, for the Personnel Security Specialist position.
(Skala Decl., Ex. G to Mot. Summ. J., ¶
Hutchinson's Notice of Non-selection
email dated April 25, 2011, Cook notified Hutchinson that she
had not been selected for the position of Personnel Security
Specialist. (Ex. B-4 to Mot. Summ. J., at 5). Upon receipt of
Cook's email, Hutchinson requested an explanation for why
she was not selected for the position and the name of the
selectee, (Id. at 4, 5). Cook forwarded
Hutchinson's request to Hargett. (Id.). Hargett
then sent Hutchinson an email stating the following:
[Cook] sent me your email since I was the staffing specialist
over this position. I am not the selecting official for this
position, therefore I cannot answer your question on why you
were not selected. I can tell you, the selecting official
used a job criteria [sic] to review all applications to
determine the best qualified applicant. The applicant that
was selected was a veteran (external). If you would like more
specific information regarding your non-selection, I can
request that information from the selecting official.
(Id. at 4).
response to Hutchinson's request for more specific
information, Hargett told her that Holman had been selected
for the position, (Id. at 3). In a separate email,
You were placed on a [Veterans Readjustment Act Certificate]
and [a thirty percent or more disabled] [C]ertificate because
you did not meet time-in-grade for a promotion. According to
the information you submitted the highest grade you held was
a GS-6. You qualified based upon your experience in the
military. . . . [Holman]. . . had more experience and related
education. As you know, our facility is vastly growing and
there will be future job opportunities for you to apply for.
It was a pleasure to review your application. Please let me
know if there is anything else I can do for you.
(id. at 2-3). Hutchinson expressed her
disappointment regarding her non-selection and thanked
Hargett for providing her with the requested information.
(Id. at 2).
Hutchinson's EEO Complaint
began working as a Personnel Security Specialist on June 19,
2011, (Skala Decl. ¶ 9), but Hutchinson did not meet him
until approximately 2012 because they worked at different
locations, (see Hutchinson Dep. at 76-77 (explaining
that she did not meet Holman until she starting working as a
Program Specialist for Associated Health in Education)). On
August 30, 2011, Hutchinson learned, for the first time, that
the VA had interviewed applicants for the Personnel Security
Specialist position. This information was conveyed to
Hutchinson by Guy Brown, who also applied for the position
but received no interview. (Hutchinson Dep. at 72-73, 81, 82,
83; Ex. 4 to Doc. 28, at 10).
receiving this information, Hutchinson's curiosity was
piqued as to why she did not receive an interview.
(Hutchinson Dep. at 78-80). Therefore, she submitted a
Freedom of Information Act ("FOIA") request to
gather more information concerning the interviewees and to
obtain any certificates that contained her name.
(Id.). From her FOIA request, Hutchinson learned
that her name was placed on three separate Certificates for
applicants qualifying for veterans' preference under: (1)
the 30% or more Disabled Veterans Act, (2) the Veterans
Readjustment Act, and (3) the Veterans Employment Opportunity
Act. (Doc. 28 at 2; Exs. 8, 9 &10 to Doc. 28). In
addition to learning that her name appeared on three
certificates for veterans' preference, Hutchinson
discovered that Holman was a white male who, in her view,
possessed less work-related experience and education than she
did. (Ex. B-6 to Mot. Summ. J.; Hutchinson Dep. at
Hutchinson contacted an EEO counselor with the Office of
Resolution Management ("ORM") on September 20,
2011, and alleged that the VA had subjected her to race and
gender discrimination by failing to promote her. (See
Hutchinson Dep. at 30-31; see also Ex. 9 to Doc.
28). The EEO counselor advised Hutchinson that her EEO
contact was untimely and requested that Hutchinson submit a
statement explaining why she failed to initiate contact with
an EEO counselor within forty-five days of learning that
Holman had been selected for the Personnel Security
Specialist position. (Ex. 9 to Doc. 28; Ex. B-6 to Mot. Summ.
J.). On September 23, 2011, Hutchinson provided the EEO
counselor with a written response, explaining that while she
learned of Holman's selection for the position in April
2011, she did not know of facts supporting a claim for
discrimination until August 30, 2011, when "[she]
learned that [Holman] ha[d] less work related experience and
less education." (Ex. B-6 to Mot. Summ. J.).
after receiving Hutchinson's statement, the ORM notified
Hutchinson of her right to file a formal complaint of
discrimination. (Doc. 28 at 4). Hutchinson filed a formal
Complaint of Employment Discrimination on October 17, 2011,
asserting that the VA had discriminated against her on the
basis of her race and gender. (Ex. B-7 to Mot. Summ. J.).
Once the ORM completed its investigation, the VA issued a
Final Agency Decision dismissing Hutchinson's Complaint
of Employment Discrimination, concluding that her claims were
barred pursuant to 29 C.F.R. § 1614.107(a). (Doc. 27 at
8; Doc. 28 at 4). Hutchinson appealed the dismissal to the
EEOC's Office of Federal Operations. (Doc. 27 at 8; Doc.
28 at 4). The Office of Federal Operations affirmed the
VA's administrative dismissal on December 11, 2015, and
informed Hutchinson of her right to file a civil complaint in
federal court within ninety days of receiving its decision.
(Doc. 27 at 8; Doc. 28 at 4).
The Instant Action
filed this lawsuit on March 1, 2016. In her one-count
complaint, Hutchinson claims that the VA discriminated
against her on the basis of her race and gender by failing to
select her for the Personnel Security Specialist position.
(Compl. ¶¶ 27-32). The VA now seeks summary
judgment in its favor, arguing that Hutchinson failed to
exhaust her administrative remedies. (Doc. 27).
Alternatively, the VA argues that Hutchinson's claims
fail on the merits. (Id.).
Summary Judgment Standards
court shall grant summary judgment if the movant 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). In ruling on a motion for summary
judgment, the Court construes the facts and all reasonable
inferences therefrom in the light most favorable to the
nonmoving party. Reeves v. Sanderson Plumbing Prods.,
Inc.,530 U.S. 133, 150 (2000). However, when faced with
a "properly supported motion for summary judgment, [the
nonmoving party] must come forward with ...