Horschel v. Zinke
Filing
198
ORDER granting in part and denying in part 118 and 131 Motion for Summary Judgment. Signed by Judge H. Russel Holland on 5/26/22. (JLH, COURT STAFF)
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ESTHER HORSCHEL,
)
)
Plaintiff,
)
)
vs.
)
)
DEB HAALAND, Secretary of the Department )
of Interior,
)
)
Defendant.
)
_______________________________________)
)
ESTHER HORSCHEL,
)
)
Plaintiff,
)
)
vs.
)
)
DEB HAALAND, Secretary of the Department )
of Interior,
)
)
Defendant.
)
_______________________________________)
No. 4:18-cv-0006-HRH
[Consolidated with
No. 4:19-cv-0022-HRH]
ORDER
Defendant’s Motion for Summary Judgment
on Plaintiff’s Non-selection Claims
Defendant Deb Haaland, Secretary of the Interior, moves for summary judgment on
plaintiff’s 2010, 2011, and 2012 non-selection claims.1 This motion is opposed by plaintiff
Esther Horschel.2 Oral argument was requested and has been heard.
1
Docket Nos. 118 and 131.
2
Docket No. 151.
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I. Facts
In 2010, plaintiff was employed by the Bureau of Land Management/Alaska Fire
Service (AFS) as a seasonal fire dispatcher, which meant that she worked from early spring
through early fall, after which she would be on furlough until the next fire season. Plaintiff
had a classification of GS-7. Plaintiff’s duty station was in Galena, Alaska.
In 2010, plaintiff applied for a full-year, non-seasonal position as a Fire Coordination
Officer, which was a supervisory position. This position had a promotion potential to GS-10.
Marlene Eno-Hendren was “the selecting official.”3 Eno-Hendren averred that “[t]here were
two individuals on the Best Qualified list - Hilary Shook and Ms. Horschel” and that she “did
not conduct interviews because [she] had worked with both of them.”4 Eno-Hendren averred
that she “selected Ms. Shook” for the position because Shook “had previous supervisory
experience, and Ms. Horschel did not.”5 This supervisory experience consisted of Shook
being the program coordinator of a small food bank where she supervised one full-time
employee, two student interns, and 150 volunteers.6
3
Marlene Eno-Hendren Affidavit, Exhibit B at 3, Defendant’s Motion for Summary
Judgment, Docket No. 131.
4
Id.
5
Id.
6
Deposition of Marlene Eno-Hendren at 45:11-47:17, Exhibit 35, Docket No. 153-36.
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Plaintiff, however, contends that she was better qualified for the Fire Coordination
Officer position because she met the 90-day on-the-line wildfire experience requirement, had
several seasons of fire experience, and had assumed the duties of the position in the spring
of 2010. Plaintiff contends that Shook did not meet the 90-day on-the-line wildfire
experience requirement and that the records that have been produced in discovery show that
Shook did not have any experience prior to 2007 that would qualify for the 90-day on-theline wildfire experience requirement.7
Plaintiff avers that when she asked Eno-Hendren why she was not selected for the
position, Eno-Hendren “told me that I was not hired for the position because I ‘have not
come out of [my] shell’ and that while I was ‘technically proficient’ that I was ‘missing the
rest’ and that I was a ‘head down type’ not the ‘supervisor type.’”8 Plaintiff also avers that
Eno-Hendren told her that “I could not be hired for th[e] position because I was doing
GS-9/11 level Geographic Information Specialist (GIS) work in Galena. Ms. Eno-Hendren
stated that ‘it would hurt the Agency to promote you because then you wouldn’t be able to
do the GIS work’ and that she would have to hire someone else to do its GIS work for the
Galena Zone.”9 Plaintiff also avers that when she questioned Eno-Hendren about the quality
of Shook’s work, Eno-Hendren said that “Shook did not need to get her work correct as the
7
Exhibit 37, Docket No. 153-40.
8
SEALED Esther Horschel Affidavit at 2, ¶ 4, Exhibit 16, Affidavit of Richard
Sparks, Docket No. 152.
9
Id. at 2, ¶ 5.
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Fire Coordination Officer, because she would . . . only be a supervisor.”10 Plaintiff further
avers that when she questioned Eno-Hendren about the 90-day requirement, Eno-Hendren
told her “that HR had qualified Ms. Shook for the position.”11
In August 2010, plaintiff applied for a Geographic Information Systems (GIS)
Specialist position, which was a full-year, non-seasonal GS 7/9/11 position. There had been
two prior recruitments for the GIS specialist position, one in October 2008 as a GS-11 and
one in January 2010 as a GS 9/11. Neither of these recruitments was successful.
The GIS position required either a bachelor’s degree in a related discipline or “a
combination of education and experience[.]”12 Plaintiff did not have a bachelor’s degree but
she contends that she “had done extensive GIS work for the BLM AFS. . . .”13 In a 2007
performance evaluation, it was noted that plaintiff “had worked with the AFS GIS office
throughout the season to gain better knowledge of the GIS programs used.”14 And, in her
2008 performance evaluation, it was noted that plaintiff had provided “maps to Interagency
partners using her GIS skills.”15 In addition, in 2008, plaintiff did a 20-day assignment as
10
Id. at 2, ¶ 4.
11
Id. at 2, ¶ 6.
12
Exhibit 5 at 4-5, Docket No. 153-7.
13
Plaintiff Horschel Opposition [etc.] at 2, Docket No. 151.
14
Exhibit 1 at 24, Docket No. 153-3.
15
Id. at 32.
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a GIS specialist trainee working on the “Iron Complex” fire and it was noted that plaintiff
did “an excellent job”16 on the assignment and that she had “the skills and personality to be
an awesome GISS.”17 Plaintiff also did a 16-day assignment as a GIS specialist trainee
working on the “Siskiyou Complex and Blue” fires and it was noted that plaintiff “performed
very well in providing GIS products”18 and that she “exceeded expectations for the
position.”19 On plaintiff’s 2009 performance evaluation, it was noted that plaintiff “worked
with the other dispatchers in the Galena zone showing them how to utilize GIS. . . .”20 Also
in 2009, plaintiff did two temporary assignments as a GIS Specialist on fires in Alaska and
was commended for her work on both assignments.21
Beverly Fronterhouse was the selecting official for the GIS position.22 Plaintiff was
one of three candidates “on the Certificate of Referrals” that Fronterhouse “received from
Human Resources.”23 Plaintiff was rated qualified at both the GS 9 level and the GS 7
16
Exhibit 7 at 1, Docket No. 153-9.
17
Exhibit 8 at 1, Docket No. 153-10.
18
Exhibit 10 at 1, Docket No. 153-12.
19
Exhibit 11 at 1, Docket No. 153-13.
20
Exhibit 1 at 41, Docket No. 153-3.
21
Exhibits 13 and 14, Docket Nos. 153-15 and 153-16.
22
Beverly Fronterhouse Affidavit, Exhibit C at 3, Defendant’s Motion for Summary
Judgment, Docket No. 131.
23
Id.
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level.24 Fronterhouse selected Daniel Griggs for the position. Fronterhouse averred that she
“based [her] decision on the interview results” from the second recruitment, “work
experience in the GIS field[,] and education.”25 Plaintiff had been interviewed during the
second recruitment; Griggs had not been. Fronterhouse explained that
Griggs had worked for AFS on a detail in our GIS group, was a
cartographic technician at the Alaska State Office dealing with
maps and geography, which required similar skill sets[,] and
served an internship as a GIS Specialist with the National Parks
Service. Mr. Griggs also had [a] Master’s degree in Geography,
graduating with a 3.38 GPA.[26]
Griggs was rated qualified at the GS-7 level.27 Prior to hiring Griggs for the GIS
position, Fronterhouse had attempted to do a lateral transfer of Griggs into the position.28
Fronterhouse had also selected Griggs to do a 30-day detail to the GIS position in April
2010.29 Plaintiff had offered to do a detail to the GIS position around that same time but
Fronterhouse never took plaintiff up on her offer.
24
Exhibits 24 and 25, Docket Nos. 153-25 and 153-26.
25
Fronterhouse Affidavit, Exhibit C at 3, Defendant’s Motion for Summary Judgment,
Docket No. 131.
26
Id. At other times, Fronterhouse inaccurately stated that Griggs had “a Master’s
Degree in GIS.” Exhibit 28 at 1, Docket No. 153-29.
27
Exhibit 25 at 2, Docket No. 153-26.
28
Exhibit 18 at 1, Docket No. 153-19.
29
30(b)(6) Deposition of Beverly Fronterhouse at 32:21-23, Exhibit 21, Docket No.
153-22.
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Hilary Rigby, one of the members of the interview panel for the second recruitment
for the GIS position, testified that she “was impressed with” plaintiff’s “interview” and that
plaintiff had “nailed” her interview.30 Rigby also testified that “[b]ased on his performance
during the detail,” she did not think Griggs should have been selected for the GIS position.31
And, Rigby testified that after Griggs was hired, he required extensive one-on-one training
in GIS functions, training that Rigby believed plaintiff would not have required.32 Rigby
testified that Fronterhouse told her that she did not hire plaintiff for the GIS position because
she did not think plaintiff would be a good “fit” for the group dynamic.33 Rigby raised
concerns to her superiors about the fairness of the hiring of the GIS position both prior to the
selection of Griggs and after his selection.
In August 2010, plaintiff contacted a BLM EEO Officer regarding her non-selection
for the Fire Coordinator and GIS Specialist positions. In addition, plaintiff “filed two
appeals with the MSPB regarding the . . . hiring for the Fire Coordinator and GIS positions
on January 12, 2011.”34 These appeals were dismissed for lack of jurisdiction on March 25,
30
Telephonic Deposition of Hilary Rigby at 12:24-13:2, Exhibit 29, Docket No. 153-
30.
31
Id. at 20:5-8.
32
Id. at 27:7-28:5.
33
Id. at 34:1-14.
34
SEALED Horschel Affidavit at 4, ¶ 15, Exhibit 16, Sparks Affidavit, Docket No.
152.
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2011.35 In January 2011, plaintiff began informal EEO counseling,36 and on May 2, 2011,
plaintiff filed a formal EEOC complaint, alleging that she had been discriminated against due
to her race, color, sex, national origin, and physical and mental disability and in reprisal for
her prior protected activity.37
In the spring of 2011, plaintiff applied for a 120-day temporary detail for an
Intelligence Officer position. Plaintiff was not selected for this detail. David Curry was the
selecting official.38 Cheryl Van Der Horn was selected for the detail because Curry
“considered her the best qualified and the best fit for our office.”39 Curry explained that both
Van Der Horn and plaintiff were qualified for the detail but “having interacted with both
candidates on numerous occasions over a period of at least 2 years, I felt Ms. [Van Der Horn]
displayed stronger communication skills, which is an important factor for work in this
field.”40 Plaintiff, however, points out that Van Der Horn had been reduced in grade from
GS-8 to GS-5 in 2009.41 Plaintiff also points out that Van Der Horn was given a temporary
35
Id. at 4, ¶ 17.
36
Id. at 4, ¶ 16.
37
Exhibit 39, Docket No. 153-44.
38
David Curry Affidavit, Exhibit 63 at 2, Docket No. 153-71.
39
Id.
40
Id.
41
Exhibit 64A at 1-4, Docket No. 153-73.
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promotion to GS-9 during her detail,42 even though when plaintiff received a similar detail
in 2012, she was only paid at a GS-7 rate.
In October 2011, plaintiff applied for two vacant Legal Instrument Examiner (LIE)
positions, which were year-round, non-seasonal positions. Plaintiff was not interviewed for
either position. Jenekia Ross was the selecting official for these positions.43 One of the LIE
positions was advertised and hired under a Delegated Examining Authority (DEU) process
and the other position was advertised and hired under the Merit System process.44 Plaintiff
was rated qualified for both positions but was only referred as an eligible candidate for the
Merit System position because referrals for the DEU position were limited to qualified
veterans.45 Russell Hawkins, a retired Army First Sergeant, was selected for the Merit
System position. There is no evidence in the record from Ross as to why plaintiff was not
interviewed or why Ross selected Hawkins. David Grasso, a disabled veteran with no prior
federal civilian work experience, was hired for the DEU position. There is no evidence in
the record as to why Grasso was selected. Plaintiff contends that her qualifications were
superior to those of both Hawkins and Grasso given that she had “direct experience
successfully performing the job duties of the position for 8 weeks during 2011 and her
42
Exhibit 65 at 3, Docket No. 153-74.
43
Karen Deatherage Affidavit, Exhibit FF at 2, Defendant’s Motion for Summary
Judgment, Docket No. 131.
44
Affidavit of Melinda Asher, Exhibit 112 at 2, Docket No. 154-12.
45
Id. at 3.
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extensive GIS and land ownership research experience working as a senior fire dispatcher
for the Alaska Fire Service[.]”46
In the spring of 2012, plaintiff applied for an Intelligence Assistant Position, a
position to which plaintiff had been previously detailed, a detail which she successfully
performed.47 Tamala DeFries was the selecting official for this position.48 Cheryl Van Der
Horn was selected for the position. DeFries averred that Van Der Horn was selected
“because she was the best qualified. Through her application and a strong interview, Cheryl
demonstrated technical ability as well as solid communication skills, customer service and
interpersonal skills which are an important part of and highly desirable in this position.”49
DeFries averred that through her interview, Van Der Horn “revealed an approach to customer
service that highlighted strong communication skills, positive attitude, and people
oriented[.]”50 DeFries averred that plaintiff “showed competence in basic technical skills”
and that in her interview she “emphasized technical aptitude rather than drawing attention
to a balanced technical and interpersonal skillset that would include highlighting strong
46
Plaintiff Horschel Opposition [etc.] at 51, Docket No. 151.
47
See, e.g., Exhibit 174 at 2, Docket No. 154-67.
48
Affidavit of Tamala “Tami” DeFries, Exhibit 187 at 2, Docket No. 154-78.
49
Id. at 5-6.
50
Id. at 7.
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communication skills, positive attitude, and people oriented.”51 These averments are
consistent with the statements DeFries made in a September 13, 2012 email to plaintiff. In
that email, DeFries explained that she selected Van Der Horn “because she was the best
qualified. Through her application and a strong interview, Cheryl demonstrated both
technical ability as well as solid communication, customer service and interpersonal skills
which are an important part of and highly desirable in this position.”52 During a later EEOC
interview, DeFries stated that
Van Der Horn has lower technical skills, yet she has a more
interactive approach to getting the job done; during the interview process, her customer service skills excelled. [A] large
part of the duties include communicating with AICC both in the
interagency and Alaska region [and] phone and email communication with the lower 48, NICC and . . . Ms. Van Der Horn had
great networking skills. [T]he complainant [plaintiff] excelled
in her technical skills; but when trying to balance the complainant’s technical skills, . . . during the interview process, [plaintiff]
did not demonstrate the required interpersonal skills necessary
for the position including the required communication skills.[53]
Mike Roos, one of the interview panel members, averred that after the interviews, he
recommended that plaintiff be selected because he considered her “the best choice for the
position.”54 Roos averred that he thought plaintiff was as qualified as Van Der Horn “but had
51
Id.
52
Exhibit 192, Docket No. 154-84.
53
Exhibit 191 at 13, Docket No. 154-83.
54
Mike Roos Affidavit, Exhibit 194 at 4, Docket No. 154-86.
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more dispatch background and experience in the job in question. . . .”55 This is consistent
with DeFries’ affidavit, in which she averred that “Mike Roos recommended the selection
of [plaintiff] based on his opinion [that plaintiff] had a higher degree of technical ability as
well as supporting education.”56 DeFries averred that the other member of the interview
panel, Ray Crowe, recommended that Van Der Horn be selected although he “recognized that
both candidates were experienced in the position and both performed well in the past.”57
There is, however, evidence in the record that after the interviews, Crowe had remarked that
he was “pretty sure” that plaintiff was going to be selected.58
“The interview rating materials as well as all applicant information and materials” for
the Intelligence Assistant position have been destroyed because, according to DeFries, “it is
common routine for these materials to be destroyed given the personal information recorded
within these documents.”59 DeFries further testified that it has been her practice for over a
decade to destroy interview notes after a selection was approved.60
55
Id. at 5.
56
DeFries Affidavit, Exhibit 187 at 9, Docket No. 154-78.
57
Id.
58
Exhibit 200 at 2, Docket No. 154-91.
59
DeFries Affidavit, Exhibit 187 at 9, Docket No. 154-78.
60
Videotape[d] Deposition of Tamala DeFries at 15:20-16:2, Exhibit 204, Docket No.
154-94.
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Plaintiff contends that her qualifications for the Intelligence Assistant position were
far superior to those of Van Der Horn. For example, Van Der Horn herself avers that
plaintiff “possessed superior computer skills,” and that she [Van Der Horn] had “not had
CFFDRS or NFDRS training” at the time of the selection, training that plaintiff had.61 Van
Der Horn also avers that she “had not . . . received a detail or assignment to the National
Interagency Coordination Center Intelligence Desk[,]”62 but plaintiff had done such a detail.
Plaintiff also points out that DeFries testified that she was aware that there had “been a few
circumstances in which” Van Der Horn had been rude to people at AFS.63
Plaintiff alleges,64 and defendant does not dispute, that plaintiff has “fully exhausted
her administrative remedies regarding” her non-selection claims.
Plaintiff’s non-selection claims fall into four categories: 1) Title VII disparate
treatment claims, 2) Title VII retaliation claims, 3) Rehabilitation Act disparate treatment
claims, and 4) Rehabilitation Act retaliation claims. Specifically, in her fourth amended
complaint, plaintiff alleges that her non-selection for the Fire Coordination Officer and GIS
Specialist positions constituted disparate treatment and that she was treated differently due
61
Affidavit of Cheryl Van Der Horn at 1, ¶¶ 2-3, Exhibit 202, Docket No. 154-93.
62
Id. at ¶ 4.
63
DeFries Deposition at 6:2-7, Exhibit 204, Docket No. 154-94.
64
Fourth Amended Complaint at 23, ¶ 65, Docket No. 45.
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to her race, national origin, color, and sex.65 Plaintiff alleges that her non-selection for the
Intelligence Officer detail “constituted disparate treatment” and that she was treated
differently due to her race, national origin, color, sex, and mental disability and in retaliation
for her prior protected activity.66 Plaintiff alleges that her non-selection for the two LIE
positions “constituted disparate treatment” and that she was treated differently due to her
race, national origin, color, sex, mental disability, and in retaliation for her prior protected
activity.67 And, plaintiff alleges that “she was subjected to discrimination” when she was not
selected for the Intelligence Assistant position and that she was treated differently due to her
race, national origin, color, mental disability, and in retaliation for her prior protected
activity.68
Defendant now moves for summary judgment on plaintiff’s non-selection claims.
II. Applicable Law
A. Summary Judgment Standard
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
initial burden is on the moving party to show that there is an absence of genuine issues of
65
Id. at 5, ¶ 13.
66
Id. at 7, ¶ 18.
67
Id. at 19, ¶ 54.
68
Id. at 21, ¶ 59.
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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party meets
its initial burden, then the non-moving party must set forth specific facts showing that there
is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In deciding a motion for summary judgment, the court views the evidence of the non-movant
in the light most favorable to that party, and all justifiable inferences are also to be drawn in
its favor. Id. at 255. “‘[T]he court’s ultimate inquiry is to determine whether the ‘specific
facts’ set forth by the nonmoving party, coupled with undisputed background or contextual
facts, are such that a rational or reasonable jury might return a verdict in its favor based on
that evidence.’” Arandell Corp. v. Centerpoint Energy Services, Inc., 900 F.3d 623, 628–29
(9th Cir. 2018) (quoting T.W. Elec. Service, Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d
626, 631 (9th Cir. 1987)).
B. Law Governing Title VII Disparate Treatment Claims
Title VII makes it unlawful for an employer “to discriminate against any individual
with respect to h[er] compensation, terms, conditions, or privileges of employment, because
of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. §
2000e-2(a)(1). “‘Disparate treatment’ is the most easily understood type of discrimination.
The employer simply treats some people less favorably than others because of their race,
color, religion, or” sex. Mangold v. Calif. Public Utilities Com’n, 67 F.3d 1470, 1474 (9th
Cir. 1995) (citation omitted). “To establish disparate treatment under Title VII, a plaintiff
‘must offer evidence that gives rise to an inference of unlawful discrimination, either through
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the framework set forth in McDonnell Douglas Corp. v. Green or with direct or circumstantial evidence of discriminatory intent.’” Freyd v. Univ. of Or., 990 F.3d 1211, 1228 (9th Cir.
2021) (quoting Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003)).
Under the McDonnell Douglas framework, plaintiff must first “make out a prima facie
case.” Weil v. Citizens Telecom Services Co., 922 F.3d 993, 1002 (9th Cir. 2019). To make
out a prima facie case of discrimination, the plaintiff must show “that ‘(1) [s]he is a member
of a protected class; (2) [s]he was qualified for h[er] position; (3) [s]he experienced an
adverse employment action; and (4) similarly situated individuals outside h[er] protected
class were treated more favorably.’” Freyd, 990 F.3d at 1228 (quoting Fonseca v. Sysco
Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir. 2004)). “[A]n adverse employment
action is one that materially affect[s] the compensation, terms, conditions, or privileges of
. . . employment.” Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (citation
omitted). “The Ninth Circuit defines adverse employment actions broadly.” Martinez v.
Costco Wholesale Corp., 481 F. Supp. 3d 1076, 1091 (S.D. Cal. 2020). In the Ninth Circuit,
an adverse employment action can include
“a lateral transfer, or refusing a lateral transfer; undeserved
negative performance evaluations or job references if motivated
by retaliatory animus and not promptly corrected; being excluded from meetings, seminars and positions that would have
made plaintiff more eligible for salary increases; being denied
secretarial support; eliminating job responsibilities; and failure
to be promoted or be considered for promotion.”
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Id. (quoting Shepard v. City of Portland, 829 F. Supp. 2d 940, 960 (D. Or. 2011)).
“Although the requisite level of proof necessary for a plaintiff to establish a prima facie Title
VII case at the summary judgment stage ‘is minimal and does not even need to rise to the
level of a preponderance of the evidence,’ the plaintiff still must produce evidence, not just
pleadings or argument.” Weil, 922 F.3d at 1002 (quoting Wallis v. J.R. Simplot Co., 26 F.3d
885, 889 (9th Cir. 1994)).
“Once the prima facie case is made, a presumption of unlawful discrimination is
created and the burden shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for its action.” Id. (citation omitted). If the employer meets its burden “to articulate
a legitimate, nondiscriminatory reason for its action[,]” then the burden shifts to plaintiff to
“produce sufficient evidence to raise a genuine issue of material fact as to whether the
employer’s proffered nondiscriminatory reason is merely a pretext for discrimination.”
Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005). “[P]laintiff
may show pretext either (1) by showing that unlawful discrimination more likely motivated
the employer, or (2) by showing that the employer’s proffered explanation is unworthy of
credence because it is inconsistent or otherwise not believable.” Id. “Ultimately, . . .
plaintiff’s burden is to ‘produce some evidence suggesting that’” defendant’s failure to select
her for the positions in question “was due in part or whole to discriminatory intent.’” Id.
(quoting McGinest v. GTE Service Corp., 360 F.3d 1103, 1123 (9th Cir. 2004)). Plaintiff
may offer direct or circumstantial evidence to show pretext. Godwin v. Hunt Wesson, Inc.,
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150 F.3d 1217, 1220-21 (9th Cir.1998). “When the plaintiff offers direct evidence of
discriminatory motive, a triable issue as to the actual motivation of the employer is created
even if the evidence is not substantial.” Id. at 1221. Circumstantial evidence, on the other
hand “must be specific and substantial in order to create a triable issue with respect to
whether the employer intended to discriminate. . . .” Id. at 1222 (citation omitted). Plaintiff
“does not necessarily have to introduce additional, independent evidence of discrimination”
at the pretext stage. Chuang v. Univ. of Calif, Davis, Bd. of Trustees, 225 F.3d 1115, 1127
(9th Cir. 2000) (citation omitted). “[A] disparate treatment plaintiff can survive summary
judgment without producing any evidence of discrimination beyond that constituting his
prima facie case, if that evidence raises a genuine issue of material fact regarding the truth
of the employer’s proffered reasons.” Id. (emphasis added).
C. Law Governing Title VII Retaliation Claims
“Title VII prohibits retaliation against any individual ‘because [s]he has opposed any
practice made an unlawful employment practice by this subchapter.’” Maner v. Dignity
Health, 9 F.4th 1114, 1127 (9th Cir. 2021) (quoting 42 U.S.C. § 2000e-3(a)). “In a
retaliation claim under Title VII, a ‘plaintiff has the burden of proving a prima facie case of
discrimination based on opposition to an unlawful employment practice.’” Kennedy v.
Bremerton School Dist., 991 F.3d 1004, 1022 (9th Cir. 2021) (quoting E.E.O.C. v. Crown
Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir. 1983)). “In order to establish a prima facie
case of retaliation under Title VII,” plaintiff “must demonstrate that (1) she engaged in an
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activity protected under Title VII; (2) her employer subjected her to an adverse employment
action; and (3) a causal link exists between the protected activity and the adverse employment action.” Thomas v. City of Beaverton, 379 F.3d 802, 811 (9th Cir. 2004). “In the
Ninth Circuit, ‘an adverse employment action is adverse treatment that is reasonably likely
to deter employees from engaging in protected activity.’” Alozie v. Ariz. Board of Regents,
431 F. Supp. 3d 1100, 1115 (D. Ariz. 2020) (quoting Ray v. Henderson, 217 F.3d 1234, 1237
(9th Cir. 2000)). “[C]ausation may be established based on the timing of the relevant actions.
Specifically, when adverse employment decisions are taken within a reasonable period of
time after complaints of discrimination have been made, retaliatory intent may be inferred.”
Passantino v. Johnson & Johnson Consumer Products, Inc., 212 F.3d 493, 507 (9th Cir.
2000). However, “[i]t is important to emphasize that it is causation, not temporal proximity
itself, that is an element of plaintiff’s prima facie case, and temporal proximity merely
provides an evidentiary basis from which an inference can be drawn.” Porter v. California
Dep’t of Corrections, 419 F.3d 885, 895 (9th Cir. 2005) (citation omitted). If plaintiff makes
out a prima facie case, “then McDonnell Douglas burden-shifting is appropriate.” Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).
D. Law Governing Rehabilitation Act Disparate Treatment Claims
“[T]he Rehabilitation Act prohibits federal agencies from discriminating against
disabled persons in employment matters, such as hiring, placement, or advancement.”
Jackson v. Napolitano, Case No. CV–09–1822–PHX–LOA, 2010 WL 94110, at *4 (D. Ariz.
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Jan. 5, 2010) (citing 29 U.S.C. §§ 701 et seq.). The McDonnell Douglas burden shifting
framework is applied to Rehabilitation Act disparate treatment claims. McCoy v. Dep’t of
Army, 789 F. Supp. 2d 1221, 1228-29 (E.D. Cal. 2011). Under that framework, the plaintiff
first must make out a prima facie case of discrimination. Id. at 1228. “To state a prima facie
case under the Rehabilitation Act, a plaintiff must demonstrate that (1) she is a person with
a disability, (2) who is otherwise qualified for employment, and (3) suffered discrimination
because of her disability.” Walton v. U.S. Marshals Service, 492 F.3d 998, 1005 (9th Cir.
2007). “Once [a plaintiff] has put forth her prima facie claim, the burden then shifts to the
[employer], which must [put] forward a legitimate, nondiscriminatory reason for its actions.”
Kim v. Potter, 474 F. Supp. 2d 1175, 1186 (D. Hawai’i 2007). “If the [employer] does so,
the burden shifts back to [the plaintiff] who must demonstrate that the [employer’s] proffered
reason is pretextual. . . .” Id.
E. Law Governing Rehabilitation Act Retaliation Claims
Even if a plaintiff is “not disabled under the Rehabilitation Act,” she may still be able
to pursue a retaliation claim under the Rehabilitation Act. Coons v. Sec. of U.S. Dep’t of
Treasury, 383 F.3d 879, 887 (9th Cir. 2004). “Absent direct evidence of retaliation, the
McDonnell Douglas burden-shifting framework used for proving Title VII discrimination
claims applies” to Rehabilitation Act retaliation claims. Miller v. Monroe School Dist., 159
F. Supp. 3d 1238, 1251 (W.D. Wash. 2016). “First, the plaintiff must establish a prima facie
case of retaliation. . . .” Id. A prima facie case of retaliation requires a plaintiff to show “that
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(1) he or she engaged in a protected activity; (2) he or she suffered a materially adverse
[employment] action; and (3) there existed a causal connection between the protected activity
and the adverse action.” Id. (citing Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir.
2003)). Requesting a reasonable accommodation is protected activity. Coons, 383 F.3d at
887. “[C]ausation can be inferred from timing alone where an adverse employment action
follows on the heels of protected activity.” Villiarimo, 281 F.3d at 1065. “Once the plaintiff
establishes a prima facie case, the employer has the burden to present legitimate reasons for
the adverse employment action.” Coons, 383 F.3d at 887 (citation omitted). “If the employer
carries this burden, and plaintiff demonstrates a genuine issue of material fact as to whether
the reason advanced by the employer was a pretext, then the retaliation case proceeds beyond
the summary judgment stage.” Id.
III. Plaintiff’s Claims
A. Fire Coordination Officer position
Plaintiff has asserted a Title VII disparate treatment claim based on her non-selection
for the Fire Coordination Officer position. Plaintiff attempts to defeat defendant’s motion
for summary judgment on this claim via both means available to a Title VII plaintiff, by
offering direct or circumstantial evidence of discrimination and under the McDonnell
Douglas framework.
First, plaintiff argues that she has direct evidence of discrimination as to her nonselection for the Fire Coordination Officer position in the form of Eno-Hendren’s statements
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that plaintiff was a “‘head down type’” and “‘technically proficient’” but “‘missing the
rest.’”69 Plaintiff argues that these statements are direct evidence of Eno-Hendren’s bias
against Asians. See Chin v. Runnels, 343 F. Supp. 2d 891, 907 (N.D. Cal. 2004) (citation
omitted) (discussing “negative stereotypes that have long plagued Asian–Americans” such
as “Asian Americans . . . have been described as nonassertive and deferential, intelligent but
devious, and mathematically and technically oriented rather than verbally skilled”). Plaintiff
insists that these statements show that Eno-Hendren used racial stereotypes to explain why
she did not hire plaintiff for the Fire Coordination Officer position.
“Direct evidence is evidence ‘which, if believed, proves the fact [of discriminatory
animus] without inference or presumption.’” Coghlan v. American Seafoods Co., 413 F.3d
1090, 1095 (9th Cir. 2005) (quoting Godwin, 150 F.3d at 1221). “Direct evidence typically
consists of clearly sexist, racist, or similarly discriminatory statements or actions by the
employer.” Id.
The statements by Eno-Hendren are not direct evidence of a discriminatory motive on
the part of Eno-Hendren because they were not clearly racist statements. Rather, these
statements are circumstantial evidence. “Circumstantial evidence . . . is evidence that
requires an additional inferential step to demonstrate discrimination.” Id. These statements
would require an additional inferential step to show that Eno-Hendren acted because of
plaintiff’s race, color, and/or national origin. But, as circumstantial evidence, these
69
SEALED Horschel Affidavit at 2, ¶ 4, Exhibit 16, Sparks Affidavit, Docket No. 152.
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statements are sufficient to defeat defendant’s motion for summary judgment on plaintiff’s
Title VII disparate treatment claim based on her non-selection for the Fire Coordination
Officer position because they create an issue of fact as to whether Eno-Hendren was acting
with discriminatory intent.
Plaintiff’s Title VII disparate treatment claim based on her non-selection for the Fire
Coordination Officer position would also survive defendant’s motion for summary judgment
under the burden shifting framework of McDonnell Douglas. Under that framework,
plaintiff must first make out a prima facie case of discrimination, which plaintiff has done.
There can be no dispute that plaintiff has established a prima facie case of race, color, and
national origin discrimination as to the Fire Coordinator position. Plaintiff is Asian, brown,
and Vietnamese. She applied for and was qualified for the position. Plaintiff experienced
an adverse employment action when she was not selected for the position because the Fire
Coordinator position was a full-time, non-seasonal job, which means, at the very least, that
plaintiff’s compensation would have increased had she been selected. And, the person who
was selected, Shook, was a white, Caucasian individual.
Because plaintiff has made out a prima facie case, the burden shifts to defendant to
articulate legitimate, non-discriminatory reasons for not selecting plaintiff. Eno-Hendren,
the selecting official, averred that she “selected Ms. Shook” for the position because Shook
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“had previous supervisory experience, and Ms. Horschel did not.”70 It is undisputed that the
position description for the job listed “supervisory duties” as one of the major duties of the
job.71 Thus, defendant has articulated a legitimate, non-discriminatory reason for not
selecting plaintiff.
The burden then shifts to plaintiff to show pretext. Here, the statements by EnoHendren, discussed above, are specific and substantial evidence of pretext. It is possible to
infer from these statements that Eno-Hendren had a bias against Asians. If Eno-Hendren in
fact made these statements, a reasonable jury could find them to be evidence of pretext.
In sum, plaintiff has come forward with sufficient evidence to create a triable issue
of fact as to her Title VII disparate treatment claim based on her non-selection for the Fire
Coordination Officer position. Defendant is not entitled to summary judgment on this claim.
B. GIS Specialist position
Plaintiff has asserted a Title VII disparate treatment claim based on her non-selection
for the GIS Specialist position. Plaintiff attempts to defeat defendant’s motion for summary
judgment on this claim under the McDonnell Douglas framework.
Under this framework, plaintiff must first make out a prima facie case of discrimination. There is no dispute that plaintiff has established a prima facie case of race, color,
national origin and sex discrimination as to the GIS Specialist position. Plaintiff is Asian,
70
Eno-Hendren Affidavit, Exhibit B at 3, Defendant’s Motion for Summary Judgment,
Docket No. 131.
71
Exhibit VV, Defendant’s Motion for Summary Judgment, Docket No. 131.
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brown, Vietnamese and female. She applied for and was qualified for the GIS Specialist
position. Plaintiff experienced an adverse employment action when she was not selected for
this position because it was a full-time, non-seasonal job, which means that, at the very least,
plaintiff’s compensation would have increased had she been selected. And, the person who
was hired, Griggs, was a white, Caucasian male.
Because plaintiff has made out a prima facie case, the burden shifts to defendant to
articulate legitimate, non-discriminatory reasons for not selecting plaintiff. Fronterhouse,
the selecting official, has stated that she did not select plaintiff because she did not have a
college degree, while Griggs had a Master’s degree in Geography, graduating with a 3.38
GPA,72 and that “the only [GIS] experience Ms. Horschel indicated she had was that she had
served as a GIS specialist in support of fire incidents, but she had never worked as a GIS
Specialist as part of her regular job.”73 In contrast, Griggs “had worked for AFS on a detail
in our GIS group, was a cartographic technician at the Alaska State Office dealing with maps
and geography, which required similar skill sets and served an internship as a GIS Specialist
with the National Parks Service.”74 Fronterhouse also stated that when she interviewed
plaintiff during the second recruitment, plaintiff “had one of the lowest” interview scores,
72
Fronterhouse Affidavit, Exhibit C at 3, Defendant’s Motion for Summary Judgment,
Docket No. 131. At other times, Fronterhouse inaccurately stated that Griggs had “a
Master’s Degree in GIS.” Exhibit 28 at 1, Docket No. 153-29.
73
Fronterhouse Affidavit, Exhibit C at 3, Defendant’s Motion for Summary Judgment,
Docket No. 131.
74
Id.
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and “was unable to adequately answer 4 of the 15 questions presented during her
interview.”75 These are legitimate, non-discriminatory reasons for the non-selection of
plaintiff for the GIS Specialist position.
The burden then shifts to plaintiff to show evidence of pretext. Plaintiff has come
forward with specific and substantial evidence of pretext in the form of testimony from
Hilary Rigby, one of interview panel members. Rigby testified that Fronterhouse told her
that she did not hire plaintiff for the GIS position because she did not think plaintiff would
be a good “fit” for the group dynamic.76 A reasonable jury could find that this is evidence
of pretext, given that Fronterhouse’s working group was primarily Caucasians. As defendant
acknowledges, courts have found that statements about an employee not “fitting” in raise an
inference of racial or other improper motivation. See, e.g., Abrams v. Dep’t of Public Safety,
764 F.3d 244, 253 (2nd Cir. 2014) (“the phrasing ‘better fit’ or ‘fitting in’ just might have
been about race; and when construing the facts in a light most favorable to the non-moving
party, those phrases, even when isolated, could be enough to create a reasonable question of
fact for a jury”). Because plaintiff has come forward with sufficient evidence of pretext,
defendant is not entitled to summary judgment on plaintiff’s Title VII disparate treatment
claim based on her non-selection for the GIS Specialist position.
75
Id. at 3-4.
76
Telephonic Deposition of Hilary Rigby at 34:1-14, Exhibit 29, Docket No. 153-30.
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C. Intelligence Officer detail
Plaintiff has asserted disparate treatment and retaliation claims under both Title VII
and the Rehabilitation Act based on her non-selection for the Intelligence Officer detail. We
begin with her Title VII disparate treatment claim.
Plaintiff’s Title VII disparate treatment claim based on her non-selection for the
Intelligence Officer detail fails as a matter of law because this was a temporary position, not
a permanent position. Plaintiff’s not being selected for the 120-day Intelligence Officer
detail had no material effect on her compensation, or the terms, conditions or privileges of
her employment as a seasonal BLM employee in Galena. Because this was a temporary
detail, any changes in plaintiff’s compensation77 or the terms, conditions or privileges of
employment had she been selected would have been temporary and thus could not be said to
have materially affected her employment. Defendant is entitled to summary judgment on
plaintiff’s Title VII disparate treatment claim based on her non-selection for the Intelligence
Officer detail.
As for plaintiff’s Title VII retaliation claim and her Rehabilitation Act claims,
although defendant moved for summary judgment on all of plaintiff’s claims, defendant
made no argument on these claims in her opening brief. Because defendant made no
argument on these claims, defendant’s motion for summary judgment on plaintiff’s Title VII
77
Plaintiff contends that the person who was selected received a temporary promotion
to GS-9. Exhibit 65, Docket No. 153-74.
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retaliation and Rehabilitation Act claims based on her non-selection for the Intelligence
Officer detail is denied because defendant did not meet her initial burden of showing that
there were no genuine issues of material fact.
D. Two LIE positions
Plaintiff has asserted disparate treatment and retaliation claims under both Title VII
and the Rehabilitation Act based on her non-selection for the two LIE positions. We begin
with her Title VII disparate treatment claims. Plaintiff attempts to defeat defendant’s motion
for summary judgment on her Title VII disparate treatment claims under the McDonnell
Douglas framework.
Under this framework, plaintiff must first make out a prima facie case of discrimination. There can be no dispute that plaintiff did not make out a prima facie case as to the DEU
LIE position. Eligibility for that position was limited to qualified veterans, which plaintiff
was not. Thus, defendant is entitled to summary judgment on plaintiff’s Title VII disparate
treatment claim based on her non-selection for the DEU LIE position.
As for the Merit System LIE position, there is no dispute that plaintiff has established
a prima facie case of race, color, national origin, and sex discrimination. Plaintiff is Asian,
brown, Vietnamese, and female. She applied for and was qualified for the position. Plaintiff
experienced an adverse employment action when she was not selected for this position
because it was a full-time, non-seasonal job, which means that, at the very least, plaintiff’s
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compensation would have increased had she been selected. And, the person who was hired,
Hawkins, was a white, Caucasian male.
Because plaintiff has made out a prima facie case as to the Merit System LIE position,
the burden shifts to defendant to articulate a legitimate, non-discriminatory reason for not
selecting plaintiff for this position. There is no evidence in the record from the selecting
official as to why plaintiff was not interviewed or selected for this position presumably
because Ross “is no longer employed by” the BLM and in 2012, when the EEOC was
investigating these claims, “attempts to contact/locate her [were] unsuccessful.”78 Defendant
contends that plaintiff was not selected to be interviewed or for the position because she was
not one of the top candidates and because she did not have good communication skills. In
support of this contention, defendant offers affidavits from the interview panel members
stating that good communication skills, among other things, were a necessary part of the job.
Deatherage, one of the panel members, averred that prior to participating in the interviews,
Ross told her that she (Ross) “was looking for land status and/or resource use skills and
strong customer service skills.”79 Stenroos, another panel member, averred that panel
members “were asked to review applications and ascertain the top three to five candidates
78
Exhibit TTT at 5, Defendant’s Reply in Support of its Motion for Summary
Judgment, Docket No. 165.
79
Deatherage Affidavit, Exhibit FF at 3, Defendant’s Motion for Summary Judgment,
Docket No. 131.
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who we felt had the best customer service and public contact background.”80 Stenroos further
averred that plaintiff was not interviewed because “she did not make the list of the top
candidates.”81 This evidence is sufficient to meet defendant’s “minimal” burden of showing
that plaintiff was not selected for an interview or for the position for a legitimate, nondiscriminatory reason. Rezentes v. Sears, Roebuck & Co., 729 F. Supp. 2d 1197, 1205 (D.
Hawai’i 2010).
The burden then shifts to plaintiff to show pretext. The only pretext argument that
plaintiff makes is that she had superior qualifications for the job, but “an employee’s
subjective personal judgments of her competence alone do not raise a genuine issue of
material fact” as to pretext. Bradley v. Harcourt, Brace and Co., 104 F.3d 267, 270 (9th Cir.
1996). Plaintiff’s subjective belief that she was the superior candidate, by itself, is not
specific and substantial evidence of pretext.
Here, there is not any other evidence of pretext. The reason plaintiff was not
interviewed or selected was due in part to communication skills, which, as will be discussed
below in detail, is a subjective criterion that can call into question the reasons given by an
employer. But, the evidence presented by defendant as to why plaintiff was not interviewed
or selected also shows that Ross’ decision was based on land status and/or resource use skills,
which are more objective skills than communication skills. As for the Merit System LIE
80
Kenita Stenroos Affidavit, Exhibit FF at 17, Defendant’s Motion for Summary
Judgment, Docket No. 131.
81
Id. at 18.
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position, there is simply no evidence from which a reasonable jury could conclude that job
skills were a proxy for discrimination.
Because plaintiff has not come forward with specific and substantial evidence of
pretext, her Title VII disparate treatment claim based on her non-selection for the Merit
System LIE position fails as a matter of law. Defendant is entitled to summary judgment on
this claim.
As for plaintiff’s Title VII retaliation claims, defendant made no argument on these
claims in her opening brief. Because defendant made no argument on these claims,
defendant’s motion for summary judgment on these claims is denied because defendant did
not meet her initial burden of showing that there were no genuine issues of material fact.
The same applies to plaintiff’s Rehabilitation Act disparate treatment claims. Because
defendant made no argument on these claims, defendant’s motion for summary judgment on
these claims is denied because defendant did not meet her initial burden of showing that there
were no genuine issues of material fact.
As for plaintiff’s Rehabilitation Act retaliation claims based on her non-selection for
the two LIE positions, plaintiff contends that she was not hired for these two positions in
retaliation for requesting a reasonable accommodation due to her mental disability. As for
the DEU LIE position, plaintiff’s Rehabilitation Act retaliation claim fails as a matter of law
because “with regard to claims for retaliatory failure-to-hire, courts hold that a plaintiff must
show that [s]he applied for an available job; and that [s]he was qualified for that position.”
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Kucuk v. Central Wash. Univ., Case No. 17-1262JLR, 2018 WL 1570922, at *4 (W.D.
Wash. March 30, 2018) (citation omitted). As discussed above, plaintiff was not qualified
for the DEU LIE position. Thus, defendant is entitled to summary judgment on plaintiff’s
Rehabilitation Act retaliation claim based on her non-selection for the DEU LIE position.
As for the Merit Selection LIE position, plaintiff has made out a prima facie case of
retaliation. There is no dispute that plaintiff engaged in protected activity by requesting a
reasonable accommodation in May 2011. There is also no dispute that plaintiff was not
selected for the Merit System LIE position, a position for which she was qualified. As for
a causal link between the two, plaintiff “can establish causation by showing” that Ross, as
the selecting official, “had knowledge that [p]laintiff had engaged in protected activity” and
that “there is close proximity in time between the protected activity and the adverse
employment action.” Aki v. Univ. of Calif. Lawrence Berkeley Nat’l Lab., 74 F. Supp. 3d
1163, 1182 (N.D. Cal. 2014) (citation omitted). Ross was aware of plaintiff’s request for a
reasonable accommodation because she was the supervisor of the temporary detail plaintiff
was given in June 2011 as a result of plaintiff’s reasonable accommodation request.82 And
the hiring decision was made in October 2011, which could constitute a close proximity.
As discussed above in connection with plaintiff’s Title VII disparate treatment claim
based on her non-selection for the Merit System LIE position, defendant has met its minimal
82
Exhibit 73 at 2, Docket No. 153-82.
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burden to articulate a legitimate, non-discriminatory reason for not selecting plaintiff for this
position.
The burden then shifts back to plaintiff to show pretext. Plaintiff offers her affidavit
dated January 6, 2012, as evidence of pretext. Plaintiff avers that
Jekenia Ross approached me and asked me if I wanted to extend
my detail at the Fairbanks District Office for 30 days during
approximately July 2011. Ms. Ross stated that she was going to
send an email to Kent Slaughter asking to extend my detail. I
had to take sick leave and when I returned to work, Ms. Ross
told me that she had changed her mind and was not going to
request that my detail be extended due to my having taken sick
leave.[83]
Plaintiff argues that Ross changing her mind due to plaintiff having to take sick leave
because of her mental disability shows that Ross was biased against plaintiff due to her
disability.
Plaintiff also argues that it is evidence of pretext that Ross originally had selected
Melania Stober for the Merit System LIE position because Stober had qualifications similar
to plaintiff’s. Plaintiff argues that if Stober were Ross’s first choice, then it follows that
plaintiff should have been the second choice when Stober turned the position down, but for
discrimination on the part of Ross.
83
Horschel Affidavit by Interrogatories, Exhibit 101 at 12, Docket No. 153-110.
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A reasonable jury could find the foregoing to be specific and substantial evidence of
pretext. Thus, defendant is not entitled to summary judgment on plaintiff’s Rehabilitation
Act retaliation claim based on her non-selection for the Merit System LIE position.
E. Intelligence Assistant position
Plaintiff has asserted disparate treatment and retaliation claims under both Title VII
and the Rehabilitation Act based on her non-selection for the Intelligence Assistant position.
We begin with her Title VII disparate treatment claim. Plaintiff attempts to defeat
defendant’s motion for summary judgment on her Title VII disparate treatment claim under
the McDonnell Douglas framework.
Under this framework, plaintiff must first make out a prima facie case of discrimination. There is no dispute that plaintiff has established a prima facie case of race, color, and
national origin discrimination. Plaintiff is Asian, brown, and Vietnamese. She applied for
and was qualified for the position. Plaintiff experienced an adverse employment action when
she was not selected for the position because this was a full-time, non-seasonal job, which
meant that, at the very least, plaintiff’s compensation would have increased had she been
selected. And, the person who was hired, Van Der Horn, was a white, Caucasian individual.
Because plaintiff has made out a prima facie case, the burden shifts to defendant to
articulate a legitimate, non-discriminatory reason for not selecting plaintiff. DeFries averred
that Van Der Horn was selected “because she was the best qualified. Through her
application and a strong interview, Cheryl demonstrated technical ability as well as solid
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communication skills, customer service and interpersonal skills which are an important part
of and highly desirable in this position.”84 DeFries averred that through her interview, Van
Der Horn “revealed an approach to customer service that highlighted strong communication
skills, positive attitude, and people oriented[.]”85 DeFries averred that plaintiff “showed
competence in basic technical skills” and that in her interview she “emphasized technical
aptitude rather than drawing attention to a balanced technical and interpersonal skillset that
would include highlighting strong communication skills, positive attitude, and people
oriented.”86 DeFries further explained that
[b]oth candidates had a customer service philosophy conducive
to the position requirements. In the underlying tones of each
candidate’s oral presentation during the interview, [Van Der
Horn] portrayed poise, tact, as well as a security in her answers
to the questions throughout the interview process. [Plaintiff,]
although [providing] tactful and mindful answers, portrayed a
level of uncertainty in questions relative to customer service as
there was minimum eye contact with the panel members. In the
category of customer service, strong interpersonal skillsets and
communication skills are critical for success. I was looking for
a level of initiative in customer relations. [Van Der Horn]
provided examples of applicable customer service team building
experience that lead me to favor her skillset. I did not interpret
that level of customer service present in the course of [plaintiff’s
interview.[87]
84
DeFries Affidavit, Exhibit 187 at 5-6, Docket No. 154-78.
85
Id. at 7.
86
Id.
87
DeFries Affidavit, Exhibit LL at 10, Defendant’s Motion for Summary Judgment,
Docket No. 131.
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These are non-discriminatory reasons for not selecting plaintiff for the Intelligence Assistant
position.
The burden then shifts to plaintiff to show pretext. Plaintiff argues that it is evidence
of pretext that DeFries used subjective criteria as the basis for her selection of Van Der Horn
and non-selection of plaintiff. DeFries primarily selected Van Der Horn rather than plaintiff
because Van Der Horn had better communication and customer service skills. As the Ninth
Circuit has long held, “‘subjective practices are particularly susceptible to discriminatory
abuse and should be closely scrutinized.’” Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th
Cir. 1995) (quoting Sengupta v. Morrsion-Knudsen Co., 804 F.2d 1072, 1075 (9th Cir.
1986)). Here, plaintiff herself confirmed that she did not demonstrate good communication
skills during her interview. Plaintiff has explained that she could not maintain eye contact
during the interview because she had to use her notes when answering questions and that she
had to use notes because her anxiety and depression made the interview “very stressful. . . .”88
But, that does not change the subjective nature of the use of “communication skills” and
“customer service skills” as criteria.
Plaintiff has also offered other evidence that she contends shows pretext. First,
plaintiff points to the fact that DeFries did not independently draft the email she sent to
plaintiff explaining why plaintiff was not selected. As set out above, DeFries sent plaintiff
an email on September 13, 2012, explaining that she selected Van Der Horn “because she
88
Horschel Affidavit at 3, ¶ 4, Docket No. 154-95.
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was the best qualified. Through her application and a strong interview, Cheryl demonstrated
both technical ability as well as solid communication, customer service and interpersonal
skills which are an important part of and highly desirable in this position.”89 At her
deposition, DeFries testified that this language was provided to her by Helen Stewart, the
Alaska BLM HR officer, who had consulted with the solicitor’s office “to ensure we were
providing a sound response” to plaintiff’s inquiry as to why she was not selected for the
position[.]90 Plaintiff argues that because neither Stewart nor anyone at the solicitor’s office
were involved in the selection process, their involvement in drafting the reasons for
plaintiff’s non-selection suggest that the reasons given were pretext for discrimination.
No reasonable jury would conclude that this is evidence of pretext. When plaintiff
requested that DeFries “send [her] an email of the reason I was not selected for the
position[,]”91 DeFries sought advice from HR on how to respond. Seeking such advice is not
suspect. As DeFries testified, she asked and received some “pointers” from Stewart “since
I had never responded to a non-selection complaint” before.92 That DeFries asked HR for
guidance does not raise an inference that DeFries’ stated reason for not selecting plaintiff
was pretext for discrimination.
89
Exhibit 192 at 1, Docket No. 154-84.
90
DeFries Affidavit at 30:3-31:15, Exhibit 204, Docket No. 154-94.
91
Exhibit 192 at 1, Docket No. 154-84.
92
DeFries Affidavit at 30:6-9, Exhibit 204, Docket No. 154-94.
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Plaintiff also argues that it is evidence of pretext that the other two interview panel
members (Crowe and Roos) both believed she was more than qualified for the position and
that Van Der Horn herself admitted that plaintiff had superior computer skills and more
experience. Plaintiff insists that her superior qualifications are sufficient evidence of pretext
and emphasizes the fact that she had completed a successful six-month detail to the position
and three six-week assignments to a national intelligence position and had authored articles
which were published on the agency’s website. In addition, plaintiff points to her GIS and
fire experience and her experience working as the fire coordinator for the Galena zone for
several months. Plaintiff argues that this “evidence of objectively superior qualifications”
is sufficient to create a genuine issue of material fact as to pretext. Kalinoski v. Gutierrez,
435 F. Supp. 2d 55, 72 (D.D.C. 2006).
However, what others thought of plaintiff’s skills, in particular her technical skills,
is not evidence of pretext. In fact, there is no dispute that plaintiff’s technical skills were
superior to Van Der Horn’s. But DeFries has articulated that Van Der Horn was selected
because her communication and customer service skills were superior to plaintiff’s, not
because her technical skills were superior to plaintiff’s.
Plaintiff also points to the evidence that Van Der Horn was known to be rude at times,
which plaintiff argues undermines any contention that she was the “better qualified”
candidate. However, no reasonable jury would find the fact that Van Der Horn was known
to have been rude on a few occasions to be evidence of pretext. DeFries acknowledged that
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Van Der Horn had been rude in “a few circumstances” but testified that Van Der Horn is
generally “courteous and sensitive toward others[.]”93 DeFries also testified that Van Der
Horn admitted during her interview that she had been rude in the past and that she was
working on this, which DeFries felt made Van Der Horn seem very “open and real” while
plaintiff, during her interview, was “a little more closed, a little more non-communicative . . .
and wasn’t as forthcoming with that type of open, honest and communication process.”94
Thus, this is not evidence of pretext but rather is consistent with DeFries’ stated reason for
selecting Van Der Horn rather than plaintiff.
Plaintiff also makes a rather lengthy argument that the court should draw a negative
evidentiary inference from the fact that DeFries destroyed the interview notes after plaintiff
had raised concerns about her non-selection. See Talavera v. Shah, 638 F.3d 303, 312
(C.A.D.C. 2011) (in case involving similar destruction of interview notes, the court held that
“[t]he spoliation inference must be considered along with Talavera’s other admissible
evidence regarding unlawful gender discrimination”). Plaintiff argues that the destruction
of the notes creates an inference that the notes would not have supported DeFries’
explanation for plaintiff’s non-selection, which was largely based on plaintiff’s interview
performance.
93
DeFries Affidavit at 5:12-6:7, Exhibit 204, Docket No. 154-94.
94
Id. at 45:23-46:5.
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The destruction of the interview notes is somewhat troubling, despite DeFries’
testimony that this was her usual practice and that she had never been told that this practice
was wrong.95 As even defendant concedes, it was wrong of DeFries to destroy the interview
notes, given that it was the BLM’s policy that they should be kept for two years.96 A
negative evidentiary inference can be drawn from the destruction of the interview notes.
This inference, along with DeFries’ use of subjective criteria, constitutes specific and
substantial evidence of pretext. Thus, defendant is not entitled to summary judgment on
plaintiff’s Title VII disparate treatment claim based on plaintiff’s non-selection for the
Intelligence Assistant position.
Turning then to plaintiff’s Title VII retaliation claim, although defendant made no
argument in her opening brief as to plaintiff’s Title VII retaliation claim, in her opposition,
plaintiff argues that there are genuine issues of material fact as to whether she was not
selected for this position due to retaliation. Defendant responded to this argument in her
reply.
There is no dispute that plaintiff engaged in protected activity in May of 2011 when
she filed an EEOC complaint. There is also no dispute that she suffered an adverse
employment decision when she was not selected for the Intelligence Assistant position. As
for the causal link, plaintiff contends that although DeFries averred that she did not learn of
95
Id. at 16:1-10.
96
Defendant’s Reply in Support of its Motion for Summary Judgment at 56, Docket
No. 165.
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plaintiff’s protected activity until after she had selected Van Der Horn for the position,97 this
averment should not be believed because the timing is “curious.” By that, plaintiff explains
that she means that it is curious that DeFries supposedly did not learn about plaintiff’s
protected activity until just after the selection announcement was made. Plaintiff also
suggests that DeFries’ story about when she learned of plaintiff’s prior EEOC activity has
changed. When being interviewed by the EEO counselor, DeFries was asked: “Were you
aware the complainant had prior EEO Activity?”98 DeFries responded
yes; for clarification Ms. Defries stated, since getting this
position, her supervisor Ken Slaughter informed her that all
prior or pervious [sic] complaints would be handled by him; all
new complaints would become her responsibility. Ms. Defries
noted and stated, all prior complaints were not and have not
been shared with her.[99]
DeFries stated that she became aware of plaintiff’s prior EEOC activity via “Hallway
Chatter” but that “nothing about the complainant[’s] EEO matters was ever shared manager
to manager regarding the prior EEO Activities.”100 Plaintiff argues that these statements to
the EEO counselor are inconsistent with DeFries’ later statements that she did not learn of
plaintiff’s EEO activity until after the selection for the Intelligence Assistant position was
made. Plaintiff also contends that the causal connection is made here because the failed
97
DeFries Affidavit, Exhibit 187 at 3, Docket No. 154-78.
98
Exhibit 191 at 13, Docket No. 154-83.
99
Id.
100
Id. at 14.
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mediation of her three prior EEO claims occurred just a month prior to the selection of Van
Der Horn.
While there are questions of fact as to when DeFries learned about plaintiff’s
protected activity, the court will assume, for purposes of this order, that plaintiff has made
out a prima facie case of Title VII retaliation. The burden would then shift to defendant to
articulate a legitimate, non-discriminatory reason for not selecting plaintiff. As set out above
in the discussion of plaintiff’s Title VII disparate treatment claim, DeFries articulated
legitimate, non-discriminatory reasons for not selecting plaintiff for the Intelligence Assistant
position.
The burden would then shift to plaintiff to show pretext, and as discussed above,
plaintiff has come forward with specific and substantial evidence of pretext. Thus, defendant
is not entitled to summary judgment on plaintiff’s Title VII retaliation claim based on her
non-selection for the Intelligence Assistant position.
As for plaintiff’s Rehabilitation Act disparate treatment claim, defendant made no
argument on this claim in her opening brief. However, in her opposition, plaintiff argues that
there are genuine issues of material fact as to this claim.
As for the first prong of her prima facie case, plaintiff argues that she was “regarded
as” disabled by DeFries. The Rehabilitation Act provides protection to “both persons who
are impaired and who are regarded as disabled.” Sullivan By and Through Sullivan v.
Vallejo City Unified School Dist., 731 F. Supp. 947, 958 (E.D. Cal. 1990). Plaintiff argues
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that there is at least a question of fact as to whether she was “regarded as disabled” because
there is evidence from which it could be inferred that DeFries had knowledge of plaintiff’s
medical condition in the form of plaintiff’s repeated requests to participate in the leave share
program. Plaintiff also points to evidence that Crowe, one of the interview panel members,
knew of plaintiff’s medical condition in 2010,101 and she argues that it is reasonable to infer
that Crowe shared this information with DeFries, as she was Crowe’s acting supervisor.
There is no question of fact as to whether DeFries knew that plaintiff had a disability
or impairment at the time of selection. DeFries has averred that she was not aware that
plaintiff had a disability or impairment until October 17, 2012, when plaintiff sent her an
email requesting a reasonable accommodation.102 The evidence plaintiff has offered is not
to the contrary. Thus, plaintiff has not made out her prima facie case. Defendant is entitled
to summary judgment on plaintiff’s Rehabilitation Act disparate treatment claim based on
her non-selection for the Intelligence Assistant position.
As for plaintiff’s Rehabilitation Act retaliation claim, plaintiff argues that there are
questions of fact that would preclude summary judgment on this claim. As for her prima face
case, it is not quite clear what protected activity plaintiff is relying on, but it appears to be
that she had requested to participate in the leave share program. But, plaintiff has not offered
any evidence that shows that DeFries knew plaintiff had requested to participate in the leave
101
Horschel Affidavit at 7, Exhibit 206A, Docket 154-96.
102
DeFries Affidavit, Exhibit LL at 4, Defendant’s Motion for Summary Judgment,
Docket No. 131.
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share program. Thus, plaintiff has failed to make out a prima facie case. Defendant is
entitled to summary judgment on her Rehabilitation Act retaliation claim based on her nonselection for the Intelligence Assistant position.
IV. Conclusion
Defendant’s motion for summary judgment on plaintiff’s 2010, 2011, and 2012 nonselection claims is granted in part and denied in part as follows:
A. Fire Coordination Officer position
Title VII disparate treatment claim – defendant’s motion for summary judgment is
denied.
B. GIS Specialist position
Title VII disparate treatment claim – defendant’s motion for summary judgment is
denied.
C. Intelligence Officer detail
Title VII disparate treatment claim – defendant’s motion for summary judgment is
granted.
Title VII retaliation claim – defendant’s motion for summary judgment is denied.
Rehabilitation Act disparate treatment claim – defendant’s motion for summary
judgment is denied.
Rehabilitation Act retaliation claim – defendant’s motion for summary judgment is
denied.
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D. DEU LIE position
Title VII disparate treatment claim – defendant’s motion for summary judgment is
granted.
Title VII retaliation claim – defendant’s motion for summary judgment is denied.
Rehabilitation Act disparate treatment claim – defendant’s motion for summary
judgment is denied.
Rehabilitation Act retaliation claim – defendant’s motion for summary judgment is
granted.
E. Merit System LIE position
Title VII disparate treatment claim – defendant’s motion for summary judgment is
granted.
Title VII retaliation claim – defendant’s motion for summary judgment is denied.
Rehabilitation Act disparate treatment claim – defendant’s motion for summary
judgment is denied.
Rehabilitation Act retaliation claim – defendant’s motion for summary judgment is
denied.
F. Intelligence Assistant position
Title VII disparate treatment claim – defendant’s motion for summary judgment is
denied.
Title VII retaliation claim – defendant’s motion for summary judgment is denied.
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Rehabilitation Act disparate treatment claim – defendant’s motion for summary
judgment is granted.
Rehabilitation Act retaliation claim – defendant’s motion for summary judgment is
granted.
DATED at Anchorage, Alaska, this 26th day of May, 2022.
/s/ H. Russel Holland
United States District Judge
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