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Hutchinson v. Secretary, Department of Veterans Affairs Agency

United States District Court, M.D. Florida, Orlando Division

January 10, 2018




         In this 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.

         I. Background A. Hutchinson's Employment with the VA

         Hutchinson's career with the VA began in 2008, when she obtained employment at the Orlando VA Medical Center (the "Center"). (Hutchinson Dep., [1] 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.

         B. Personnel Security Specialist Vacancy Announcement

         On November 29, 2010, the VA opened a vacancy announcement for a GS-9 Personnel Security Specialist position because the Center needed to provide "PIV"[2]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).

         The 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).

         C. Hutchinson's Application and the Selection Process

         Hutchinson 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).

         On 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 applications." (id.).

         Sometime 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., 8).

         D. Hutchinson's Notice of Non-selection

         By 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).

         In 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, Hargett explained:

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).

         E. Hutchinson's EEO Complaint

         Holman 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).

         After 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 79).

         Consequently, 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.).

         Shortly 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).

         F. The Instant Action

         Hutchinson 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.).

         II. Summary Judgment Standards

         "The 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 ...

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