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Gethers v. McDonald

United States District Court, D. Connecticut

April 5, 2017

TERRY R. GETHERS, Plaintiff,


          Hon. Vanessa L. Bryant United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Factual Background

         The Department of Veterans Affairs provides healthcare to veterans nationwide through a network of hospitals. Motion at 3 (citing Department of Veterans Affairs, Locations, (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. Id.

         Plaintiff 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 2.[1] 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.]

         Christopher 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 14.

         VISN-1 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.

         At one 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.

         Falkner 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.

         Gethers 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 position”).]

         Falkner 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.]

         The 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.

         No 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.

         Both 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 3-4.]

         Gethers 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.

         Gethers 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 Complaint).]

         In 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.

         III. Standard of Review: Motion ...

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