United States District Court, D. Connecticut
TERRY R. GETHERS, Plaintiff,
ROBERT A. McDONALD, UNITED STATES OF AMERICA, DEPARTMENT OF VETERANS AFFAIRS VINS 1, OFFICE OF EMPLOYMENT DISCRIMINATION
MEMORANDUM OF DECISION GRANTING IN PART AND DENYING
IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DKT.
Vanessa L. Bryant United States District Judge
Terry Gethers (“Gethers” or
“Plaintiff”) brings this employment
discrimination action against Defendants Secretary of the
Department of Veteran's Affairs Robert A. McDonald, the
Department of Veterans Affairs VISN-1, the Office of
Employment Discrimination, and the United States of America
(together, “Defendants”) under Title VII of the
Civil Rights Act of 1964 and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. §§
621, et seq. The Defendant moved for summary
judgment and Plaintiff filed an opposition. [Dkt. 33
(“Motion”); Dkt. 40 (“Opposition”).]
For the reasons that follow, Defendant's Motion is
GRANTED in part and DENIED in part.
Department of Veterans Affairs provides healthcare to
veterans nationwide through a network of hospitals. Motion at
3 (citing Department of Veterans Affairs, Locations,
www.va.gov/directory/guide/division.asp?dnum=1 (last visited
March 21, 2017). The hospital network is divided into 23
regions called Veterans Integrated Service Networks
(“VISN”). Id. Connecticut is in VISN-1.
is an African American male; he was 54 years old in 2012.
[Dkt. 33-13 (VA Discrimination Investigation Questionnaire of
Gethers) (“Gethers' VA Questionnaire”) at
He has a Bachelor of Science in electrical engineering from
the University of Bridgeport. [Dkt. 33-3 (Deposition
Transcript of Terry Gethers (“Gethers Tr.”) at
4.] He has been employed by VISN-1 since 1990. [Dkt. 33-3
(Deposition Transcript of Terry Gethers (“Gethers
Tr.”) at 2.] He has spent most of his tenure at VISN-1
as a biomedical engineer but also spent an eight and a half
year period working in the information technology department.
Id. at 3. Gethers was appointed Acting Assistant
Chief of Clinical Engineering for two years, beginning in
approximately November 2008 when the Assistant Chief fell
ill. Id. at 8, 10. He also assumed the role of
Acting Chief of Clinical Engineering around the same time.
Id. at 10. Neither position required Gethers to
“manage a staff of people, ” but rather required
“medical knowledge and IT knowledge.”
Id. at 12. After serving as Acting Assistant Chief
and Acting Chief of Clinical Engineering he was not hired for
either position on a permanent basis, but instead “was
asked to go back to [his] original position” as a
“staff clinical engineer.” Gethers Tr. at 26. The
parties have not provided the Court with the basis for that
decision. Gethers received a positive performance evaluation
for the period from October 1, 2010 to September 30, 2011.
[Dkt. 33-6.] The parties have not provided the Court with
Gethers' other performance evaluations. Gethers held a GS
employment level of 13 throughout the relevant time period.
[Dkt. 33-5 (Gethers Employment Profile) at 13.]
Falkner (“Falkner”) is a Caucasian male who was
26 years old in 2012. [Dkt. 33-7 (Deposition Transcript of
Christopher Falkner) (“Falkner Tr.”) at 6.] He
graduated with a Master's degree in clinical engineering
from the University of Connecticut in 2010. Falkner Tr. at
3-4. Falkner explained that clinical engineering differs from
biomedical engineering in that biomedical engineers focus on
manufacturing to design medical devices while clinical
engineering is the application of biomedical engineering in a
clinical environment, such as working with physicians in a
hospital using medical devices. Id. at 2.
Falkner's degree included training in project management
skills including “facilitation, leading meetings,
creating documentation around timelines and budgets.”
Id. at 3. Falkner maintained a GS employment level
of 12 throughout the relevant time period. Id. at
holds monthly meetings open, but not mandatory, to regional
employees. Gethers Tr. at 26. Falkner regularly attended the
monthly meetings through the relevant time period. Falkner
Tr. at 10. Gethers attended regularly for a while, but
stopped going as regularly because he “felt
betrayed” when he was asked to go back to his original
position as a staff clinical engineer after he ceased working
as Acting Assistant Chief and Acting Chief of Clinical
Engineering. Id. He had also trained “every
newly hired Engineer, Technician, and Intern at VA
Connecticut.” Gethers' VA Questionnaire at 8.
of the monthly meetings (the exact date of which has not been
provided to the Court), VISN-1 sought volunteers to help
integrate new technology in VA network hospitals. Falkner Tr.
at 12. It was “typical for VISN-1 . . . to seek
volunteers from the region's hospitals' [Clinical
Engineering] services to assist with new initiatives and
special projects.” [Dkt. 33-8 (Second Declaration of
Carolyn Mahoney) (“Mahoney Decl. 2”) at 1.] The
project, ARK/CIS, stands for Anesthesia Record Keeping
Clinical Information System, and is a “device
integration platform” to “capture data from
anesthesia equipment in the operating room, as well as from
patient monitoring systems in . . . ICU areas.” Falkner
Tr. at 5.
expressed interest in the ARK/CIS project to managers in the
regional VISN-1 office, and as a result became involved in
early coordination efforts. Falkner Tr. at 12-13. At a
February 16, 2012 meeting, an announcement was made that
Falkner would be “participat[ing] in the ARK/CIS
project” by “help[ing] to coordinate with the
national program office” in an informal capacity.
Falkner Tr. at 17. Falkner emphasizes that the role of
ARK/CIS manager “did not exist” at the time of
the February meeting, and asserts the announcement only
indicated he would be helping to coordinate with the national
program office. Falkner Tr. at 17. He was not compensated for
his involvement. Id.
understood the announcement to convey that Falkner had
“accepted the new ARK/CIS position” as manager.
Gethers Tr. at 21, 34. Gethers submits declarations of three
employees present at the February 16, 2012 meeting who
understood the announcement to convey that Falkner had been
selected to take on a “new position” relating to
the ARK/CIS project. [Dkts. 40-8, 40-9, 40-10.] None of the
declarations specify whether the employees understood Falkner
to be taking on a permanent management position or an
informal coordination position. [Dkt. 40-10 (Declaration of
Shakeela Nobles) at 2 (stating the announcement was that
Falkner had been “selected to a new position as the
VISN 1 ARK/CIS Coordinator”); Dkt. 40-9 (Declaration of
Isaac McBride) at 2 (stating the announcement
“congratulated Chris Falkner on his new position to
VISN 1 ARK/CIS position”); Dkt. 40-8 (Declaration of
Jeremiah Harrington) at 2 (stating the announcement mentioned
“the promotion of Chris Falkner to the CIS-ARK
was involved in “quite a bit of effort leading up to
the region officially starting [the ARK/CIS] initiative,
” including aligning VISN-1 with the national framework
and best practices. Id. at 12. On March 1, 2012, a
Clinical Engineering Newsletter announced Falkner was the
“New VISN1 CIS-ARK Coordinator.” [Dkt. 33-9.]
first job posting seeking a manager for the ARK/CIS project
was posted on March 12, 2012. [Dkt. 33-29 (March 12, 2012 Job
Posting) at 1.] The position was listed as requiring a GS
employment level of 13. Id. The job description
indicated the “Clinical Engineer” selected for
the position would “provide professional engineering
support to a complex, technically sophisticated, and service
oriented Clinical Engineering Program, ” including
“healthcare technology strategic planning, pre-purchase
assessment, acquisition support, implementation coordination,
equipment management, training, and ongoing technical support
activities” for the ARK/CIS initiative. Id. at
2. The selected individual would also advise “on
healthcare technology matters to Network executive
management, Network Program Officers, executive management at
all medical centers and clinical service lines, and facility
department directors” and provide “guidance to
technical staff in all Clinical Engineering Programs across
the Network.” Id. Gethers did not apply to the
ARK/CIS position because he understood it had already been
filled by Falkner and his application would be futile.
Gethers Tr. at 24.
qualified applicants applied to the position posted on March
12, 2012. [Dkt. 33-10 (Record of Position Applicants).]
Falkner did not qualify because he was only a GS level 12.
Accordingly, the vacancy announcement was canceled and the
ARK/CIS management position remained unfilled. Id.
The position was reposted as requiring a GS level of 12 or 13
on May 7, 2012 and included the same job description as the
March 12, 2012 posting. [Dkt. 33-11 (May 7, 2012 Job Posting)
at 1.] Gethers applied for the position. [Gethers Tr. at 29;
Record of Position Applicants.] Of the six applicants for the
May 7, 2012 job posting, only Gethers and Falkner were deemed
qualified and interviewed for the position. Record of
Position Applicants at 1.
Falkner and Gethers were interviewed for the position. [Dkt.
33-15 (Falkner and Gethers Interview Questions).] The
interview was conducted via telephone. [Dkt. 33-16 (VA
Discrimination Investigation Questionnaire of Jason Atkins)
(“Atkins' VA Questionnaire”) at 2.] Both
candidates were asked the same preselected questions during
their interviews including, for example: “What is your
experience with medical information systems?” and
“How would you describe your leadership style within a
team?” Falkner and Gethers Interview Questions at 1-4.
The interview questions and a comparison of each interview
panelist's notes regarding the candidates' responses
are included in a table at Appendix A to this Decision.
Gethers “thought the interview questions were very
relevant, and appropriate, and it provided an opportunity for
[him] to display [his] in depth knowledge of the subject
matter. Gethers' VA Questionnaire at 3. When asked about
the hiring process after Gethers filed his internal
discrimination complaint, all three panelists denied that
Gethers' age or race were factors in Falkner's
appointment to the ARK/CIS management position. [Atkins'
VA Questionnaire at 5; Dkt. 33-17 (VA Discrimination
Investigation Questionnaire of Paul Neuhaus)
(“Neuhaus' VA Questionnaire”) at 3; Dkt.
33-24 (VA Discrimination Investigation Questionnaire of
Donald Morge) (“Morge's VA Questionnaire”) at
4.] Only one interview panelist professes he was unaware of
Gethers' age or race until Gethers filed his
Administrative Complaint, emphasizing the interview took
place over the phone. Atkins' VA Questionnaire at 2.
Morge, who scored Falkner very highly in virtually all
categories, was the most critical of Gethers and did know
Gether's age and ethnicity. Morge's VA Questionnaire
at 2. Rather, panelists assert they chose Falkner for the
position because of his communication skills, ability to
“manage troubled relationships with coworkers, ”
ability to translate technical language into “lay
person language, ” project and management experience,
and understanding of the flow of computer-based systems form
the medical device to the patient's medical record.
Atkins' VA Questionnaire at 4; Neuhaus' VA
Questionnaire at 3; Morge's VA Questionnaire at 4. The
official in charge of final selection for the position also
denies that race or age was a factor in Falkner's
appointment, and instead cites Falkner's Master's
degree, project experience, and experience working with other
VISN managers as the basis for his selection. Dkt. 33-18 (VA
Discrimination Investigation Questionnaire of Carolyn
Mahoney) (“Mahoney's VA Questionnaire”) at
received a formal notice from the Department of Veterans
Affairs on July 3, 2012 indicating he was not selected for
the position. Dkt. 33-19 (Notice) at 2.]. On July 17, 2012,
the Department of Veterans Affairs circulated an announcement
that Falkner had accepted the position. [Dkt. 33-20.] On
August 2, 2012, Falkner was formally reassigned to the
ARK/CIS position. Falkner Tr. at 14.
initiated contact with an EEO counselor on August 3, 2012 and
received a Notice of Right to File a Discrimination Complaint
on July 3, 2012. [Dkt. 33-12 (Notice of Acceptance of
Administrative Complaint) at 1.] On November 1, 2012, Gethers
filed a formal discrimination complaint asserting he
“was discriminated against on the bases of age and race
(Black) when: On July 3, 2012, the complainant was informed
that he was not selected” for the ARK/CIS management
position. [Id.; Dkt. 33-22 (Administrative
January 2013, Falkner left VISN-1 and the ARK/CIS management
position was reposted. [Dkt. 40-26 (January 30, 2013 Job
Posting).] Gethers again applied for the position, but the
job posting was “cancelled or postponed” on March
19, 2013. Gethers' VA Questionnaire. Mr. Cheng Ben-Zhang,
previously an intern, was transitioned into the role of
“ARK/CIS Project Lead” on April 16, 2013.
[Id. at 6; Dkt. 40-38 (April 16, 2013 Job
Announcement).] Mr. Ben-Zhang is an Asian male who was under
30 years old in 2013. Id. He was not hired from an
open job posting, but rather was transitioned into the role
from an internship. Id.
Standard of Review: Motion ...