Lisenby v. Mansfield

Filing 27

MEMORANDUM OPINION AND ORDER, granting 20 Motion for Summary Judgment filed by James B. Peake, MOTION for Summary Judgment filed by James B. Peake: Judgment is due to be entered in favor of the Secretary. Signed by Honorable William Keith Watkins on 5/29/09. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION C R O W E L L A. LISENBY, P la in tif f , v. ERIC K. SHINSEKI, in his official capacity as Secretary of Veterans Affairs, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-CV-1109-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is suit is an employment discrimination action against the Secretary of Veterans A f f a irs ("Secretary").1 The Secretary has moved for dismissal, or in the alternative, summary ju d g m e n t. (Docs. # 20 & 21.) Plaintiff responded in opposition to summary judgment (Doc. # 24), and the Secretary replied (Doc. # 25). The motion is ready for resolution. Based upon c a re f u l consideration of the arguments of counsel, the relevant law and the record as a whole, th e Secretary's motion for summary judgment is due to be granted, and judgment is due to b e entered in favor of the Secretary.

The case was originally filed against Gordon H. Mansfield, then acting Secretary of Veterans Affairs. Under Rule 25(d) of the Federal Rules of Civil Procedure, the successor of any officer who "ceases to hold office while the action is pending," is "automatically substituted as a party." "Later proceedings should be in the substituted party's name . . . ." Fed. R. Civ. P. 25(d). On March 19, 2008, the court ordered the substitution of James B. Peake, the then-current Secretary of Veterans Affairs. The current Secretary of Veterans Affairs, Eric K. Shinseki, is automatically substituted as the appropriate Defendant.

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I. JURISDICTION S u b je c t matter jurisdiction is exercised pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 2000e-5(f)(3), and 28 U.S.C. §§ 2201-2202. The parties do not contest personal

ju ris d ic tio n or venue, and the court finds that there are allegations sufficient to support both. II. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Crowell A. Lisenby ("Lisenby"), a Caucasian male, alleges sex and race d is c rim in a tio n under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (" T itle VII"). (Compl. ¶ 19 (Doc. # 1).) He received a right-to-sue letter from the Equal E m p lo ym e n t Opportunity Commission on October 16, 2007 (Compl. ¶ 2), and filed this suit o n December 20, 2007.2 Lisenby claims that he was unlawfully denied each of three a v a ila b le nursing positions with the Department of Veterans Affairs ("VA") based on his ra c e and/or gender. (Compl. ¶¶ 14, 20-31.)

Lisenby failed to attach the right-to-sue letter to any of his filings. Without the right-to-sue letter in the record, it cannot be ascertained that Lisenby exhausted his administrative remedies. The receipt of a right-to-sue letter, however, is not a jurisdictional prerequisite to filing a Title VII claim, but is only a "condition precedent subject to equitable modification." Pinkard v. Pullman-Standard,678 F.2d 1222, 1216 (11th Cir. 1982) (per curiam). The condition precedent to a Title VII action need not literally be met "so long as the purposes of the preconditions have been satisfied." Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1004 n.17 (11th Cir. 1982). If the defendant "does not deny the satisfaction of the preconditions specifically and with particularity, then the plaintiff's allegations are assumed admitted." Id. at 1010. The Secretary has raised a general defense that Lisenby failed to fully exhaust his administrative remedies (Answer 1-2 (Doc. # 9)), but has not argued it specifically or with particularity.

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Lisenby was employed by VA almost continuously from 1983 to 2007.3 In August 2 0 0 6 , he applied for three Certified Registered Nurse Practitioner ("CRNP") positions for m e n ta l health care services at the East Campus of the Central Alabama Veterans Health Care S ys te m ("CAVHCS"), in Tuskegee, Alabama. He was denied each position. T h e same selection process was used for each procedure.4 (Carolyn Caver Decl. 2 (E x . 6 to Def.'s Mot.).) Maryan Cardinalli and LaDonna Golden reviewed each application a n d referred those applicants who met the requisite educational training to Carolyn Caver, th e individual responsible for filling the positions. (Caver Decl. 2-3.) Each position required a p p lic a n ts to have a minimum of two years of professional practice as a CRNP, with specific e x p e rie n c e in certain areas. (Positions Announcements (Exs. 1-3 to Def.'s Mot.).) Lisenby a d m its that he lacked that qualification. (Compl. ¶ 16; Pl.'s Resp. 5.) It is Lisenby's p o s itio n , however, that the two-year experience requirement "was maliciously promulgated to inhibit [his] qualifications" for the positions. (Compl. ¶ 16.) He claims that Cardinalli in s titu te d the two-year experience requirement to eliminate him as a candidate for the

Record citations will be given for disputed or salient facts. Lisenby provided no record citations in support of his challenge to summary judgment. The court has reviewed the record, however, and will rely as necessary on the exhibits the Secretary provided. Lisenby does not appear to dispute the details of the selection process. He instead challenges the motivation behind the job requirements and selection choices.
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position.5 (Lisenby Dep. 46, Nov. 6, 2008 (Ex. 7 to Def.'s Mot.).) He also accuses her of in s titu tin g that requirement specifically because he is a male. (Lisenby Dep. 61.) Cardinalli and Golden nevertheless referred Lisenby's application to Caver. (Caver D e c l. 2.) Five other applicants were also referred. Of the total applicants, Lisenby was the o n l y male, and one of two Caucasians. (Caver Decl. 2.) Based on her review of the d o c u m e n ta tio n alone,6 Caver selected three females for the positions, one Caucasian, the o th e r two African-American. (Caver Decl. 3.) The Caucasian who was selected had ten ye a rs of experience as a nurse practitioner,7 and the two African-Americans had six and four ye a rs respectively, while the other applicants, including Lisenby, had no experience working a s nurse practitioners.8 (Caver Decl. 3.) Caver avers that she selected the candidates based s o le ly on their documented performance and their years of experience as nurse practitioners. (Caver Decl. 3.) Lisenby argues that Caver instead discriminated against him based on his g e n d e r and race by denying him the positions. (Lisenby Dep. 61.) He testified that the twoye a r experience requirement can be waived as long as a candidate met other qualifications, (Lisenby Dep. 59), though he provided no independent evidence that this was so.

It is unclear whether Cardinalli had the authority to mandate the requirement or whether she only lobbied for it. Viewing the facts in the light most favorable to the non-movant, it will be assumed that Cardinalli mandated the requirement.
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She elected to forego interviewing each candidate. (Caver Decl. 3.)

The assumption is that Caver's reference to experience as a nurse practitioner means practicing as a CRNP.
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Lisenby has not presented any evidence or argument to refute these claims.

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III. STANDARD OF REVIEW S u m m a ry judgment should be granted only "if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." 9 Fed. R. Civ. P . 56(c). Under Rule 56, the moving party "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 3 1 7 , 323 (1986). The movant can meet this burden by presenting evidence showing there is n o genuine issue of material fact, or by showing that the non-moving party has failed to p re s e n t evidence in support of some element of its case on which it bears the ultimate burden o f proof. Id. at 322-24. "[T]he court must view all evidence and make all reasonable in f e re n c e s in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F .3 d 918, 921 (11th Cir. 1995). O n c e the moving party has met its burden, "an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must ­ by affidavits or as o th e rw is e provided in this rule ­ set out specific facts showing a genuine issue for trial." Rule 56(e)(2). To avoid summary judgment, the non-moving party "must do more than s im p ly show that there is some metaphysical doubt as to the material facts." Matsushita Elec. In d u s . Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine factual dispute exists if "a reasonable jury could return a verdict for the non-moving party." Damon v. Fleming

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The case will be resolved on the motion for summary judgment, not the motion to dismiss.

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Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks a n d citation omitted). I V . DISCUSSION L is e n b y alleges two specific instances of discrimination. First, he argues that

C a rd in a lli instituted a two-year experience requirement to weed him out of the selection p ro c e s s because of his gender. Second, he argues that Caver implemented that requirement a s a way to avoid promoting him because he is white and a male.10 A prima facie case of discrimination under Title VII requires the plaintiff to show that " (1 ) [he] belongs to a protected class; (2) [he] was qualified to do the job; (3) [he] was s u b je c te d to adverse employment action; and (4) [his] employer treated similarly situated e m p lo ye e s outside [his] class more favorably." Crawford v. Carroll, 529 F.3d 961, 970 (11th C ir. 2008); see also Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1348 n .2 (11th Cir. 2007) (per curiam) (tailoring the elements to promotion cases and specifying th e adverse employment action as rejection). After establishing a prima facie case, a plaintiff s till "bears `the ultimate burden of proving discriminatory treatment'" and can meet that b u rd e n by presenting direct or circumstantial evidence of intent. Crawford, 529 F.3d at 9757 6 (quoting Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)). The M c D o n n e ll Douglas burden-shifting framework applies when a plaintiff seeks to prove

This summary is based on a generous interpretation of the factual foundation laid out in Lisenby's deposition.

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discriminatory intent by circumstantial evidence.1 1 Id. Under that framework, once the p la in tif f makes out a prima facie case of discrimination, the employer must "`articulate some le g itim a te , nondiscriminatory reason' for the adverse employment action," which, if done, s h if ts the burden back to the plaintiff to show the employer's reason was "pretext for d is c rim in a tio n ." Id. at 976 (quoting McDonnell Douglas, 411 U.S. at 802). To show pretext, th e plaintiff must "`cast sufficient doubt'" on the employer's reason such that a "`reasonable f a c t f i n d e r'" can conclude that the reason did not "`actually motivate [the employer's] c o n d u c t.'" Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). There is no direct evidence of discriminatory intent here,1 2 so Lisenby's proof of intent must b e by circumstantial evidence. T h e Secretary argues that Lisenby has failed to establish a prima facie case of d is c rim in a tio n , but that even assuming a prima facie case, he has failed to show a genuine is su e of fact as to whether the Secretary's reason for denying his application was pretextual. (Def.'s Mem. 8-13.) The Secretary concedes that Lisenby has established that he is a m e m b e r of a protected class, the non-selection was an adverse employment action, and that a ll the positions were awarded to members outside his gender group, and in two cases, to

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The framework is based on McDonnell Douglas v. Green, 411 U.S. 792 (1973).

According to Lisenby, when Carinalli told him that she instituted the two-year experience requirement to "control who got a position," she never explicitly stated that it was to prevent him from obtaining the position, let alone that it was because he is a male. (See Lisenby Dep. 46-49.) Thus, there is no evidence of direct discrimination. "`[O]nly the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor" qualifies as direct evidence of discriminatory intent. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (quoting Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)).

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members outside his racial group. (Def.'s Mem. 8.) The Secretary argues instead that L is e n b y has failed to show that he was qualified for the position (Def.'s Mem. 8-9), the other re q u ire m e n t of a prima facie case. The evidence is unresolved, however, as to whether the two-year experience re q u ire m e n t could have been waived by Caver. Lisenby claims it was waivable (Lisenby D e p . 59), and Caver never states that she denied Lisenby's application because he was u n q u a lifie d . She attributes her choice to the disparities between his experience and that of o th e r applicants ­ not to his failure to even qualify for the position. Indeed, if the two-year e x p e rie n c e was not waivable, it would be inefficient for Cardinalli and Golden to refer c a n d id a te s failing to meet that requirement to Caver since they already terminate the a p p lic a n ts who fail to meet educational requirements. Assuming the requirement is

w a iv a b le , Caver has shown he was qualified for the position,1 3 and the burden shifts to the S e c re ta ry to provide a legitimate reason for not promoting Lisenby. T h e Secretary has met that requirement. Caver stated under oath that she selected c a n d id a t e s over Lisenby based on their experience working as CRNPs. Lisenby has p re s e n te d no evidence challenging the amount of experience each selected candidate had

That a requirement is waivable does not mean it is unimportant to the decision-making process. Indeed, Lisenby's claim of discrimination against Cardinalli depends on the requirement having some influence over that process because statements by decisionmakers in the promotion process that are "`unrelated to the decisional process itself'" are not sufficient to require an employer to prove the legitimacy of its reasons, E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir. 1990) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring)). Aside from instituting the requirement, Cardinalli is not blamed for any other specific discriminatory act in the process.

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working as a CRNP. It goes without saying that hiring one candidate over another for a n u rs in g position based on the amount of CRNP experience in the field is a legitimate reason f o r an employment decision. The burden shifts back to Lisenby to prove that this reason is p re te x tu a l. He alludes to two bases for pretext ­ that the two-year requirement was a cover f o r Cardinalli to prevent males from obtaining nursing positions, and that the requirement w a s an excuse Caver used to discriminate against males and Caucasians. Both claims fail. Lisenby's only evidence that Cardinalli discriminated against him in the selection process based on his gender was testimony that she told him that she " in itia te d " the requirement to control who received the position. (Lisenby Dep. 48.) That e v id e n c e is a non-starter. The sole purpose of job requirements is to limit who can receive a position. Lisenby nevertheless interpreted her comment to mean she intended to prevent h im and others like him, who had completed the CRNP program, from receiving the positions (L is e n b y Tr. 48-49), but he presents no evidence that this requirement was new, unusual, or u n ju s tif ie d . He also cannot point to other acts of discrimination by Cardinalli or Caver. (Lisenby Dep. 67.) His perception of discrimination is limited to what he perceived from the " g e n e ra l atmosphere." (Lisenby Dep. 67.) He also asserts, however, that he was as qualified as the selected candidates and for th a t reason, his failure to meet the two-year experience requirement can only be an excuse f o r denying his applications based on discriminatory reasons. Lisenby highlights his nearly tw e n ty-f iv e years as a staff nurse for mental health services and his degree in psychiatric

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nursing. (Pl.'s Resp. 5.) What distinguished him from the others, he argues, "is insignificant a n d tenuous at best" (Pl.'s Resp. 5), and a reasonable factfinder could infer that the d is tin c tio n was concocted and implemented to prevent him from obtaining nursing jobs b e c a u s e he is white and a male. That inference is not reasonably justified. To establish pretext based on the

d if f e re n c e s in qualifications between selected and non-selected candidates, the disparities m u s t be "`of such weight and significance that no reasonable person, in the exercise of i m p a rtia l judgment, could have chosen the candidate selected over the plaintiff for the job in question.'" Brooks v. County Comm'n, 446 F.3d 1160, 1163 (11th Cir. 2006) (quoting C o o p e r v. S. Co., 390 F.3d 695, 732 (11th Cir. 2004)). Even assuming Lisenby's unproven a s s e s s m e n t that his qualifications are appreciably the same as those of the selected c a n d id a te s, he was not so much more qualified for the position that no individual exercising im p a rtia l judgment could have chosen the other candidates over him. Lisenby is asking a re a s o n a b le factfinder to disregard the significantly longer work experience of the selected c a n d id a te s, which is especially unreasonable given that CAVHCS expressed an interest in s e le c tin g candidates who had at least two years of CRNP experience in the field. Regardless, " f e d e ra l courts do not sit to second-guess the business judgment of employers. . . . [A] p l a i n t i f f may not establish that an employer's proffered reason is pretextual merely by q u e s tio n in g the wisdom of the employer's reason, at least not where, as here, the reason is o n e that might motivate a reasonable employer." Combs, 106 F.3d at 1543.

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Based on this record, Lisenby has not created a genuine issue of material fact as to w h e th e r the two-year experience requirement was pretext for discriminating against him in th e selection process. There are no other specific facts that Caver otherwise discriminated a g a in s t him based on his race and gender in selecting other candidates over him.1 4 There is n o genuine issue of fact as to the Secretary's legitimate reason for denying Lisenby's a p p lic a tio n s , and thus, no factual issue as to discriminatory intent. The Secretary is therefore e n title d to summary judgment on the discrimination claims. V . CONCLUSION A c c o rd in g ly, it is ORDERED that (1) (2 ) T h e Secretary's motion for summary judgment (Doc. # 20) is GRANTED; J u d g m e n t is due to be entered in favor of the Secretary. An appropriate

ju d g m e n t will be entered. D O N E this 29th day of May 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

Lisenby claims that there were several instances in which Caver discriminated against him (Lisenby Dep. 62) but provides no specific examples. He also claims that other nurses could verify that she discriminated him (Lisenby Dep. 62) but provides no affidavits or depositions.

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