Dunn v. Shinseki

Filing 55

ORDER granting 31 Defendant's Motion for Summary Judgment. Judgment shall enter in favor of defendant and against plaintiff. The trial preparation conference scheduled for 7/27/12 and the trial scheduled to commence on 8/16/2012 are vacated. By Judge Philip A. Brimmer on 5/31/12.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02754-PAB-MEH
GAYLE DUNN,
Plaintiff,
v.
ERIC K. SHINSEKI, Secretary, United States Department of Veterans Affairs,
Defendant.

ORDER

This matter is before the Court on defendant’s motion for summary judgment
[Docket No. 31]. The motion is fully briefed and ripe for disposition.
Plaintiff Gayle Dunn, who is African American, brings suit pursuant to Title VII of
the 1964 Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq., contending that, on
account of her race, she was not selected for a Pharmacy Program Specialist position
with Health Administration Center’s Business Process Office (“BPO”) of the U.S.
Department of Veterans Affairs. Defendant argues that there is insufficient evidence of
discrimination to survive summary judgment.1

1

Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of
Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A
disputed fact is “material” if under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.
2001). Only disputes over material facts can create a genuine issue for trial and

Plaintiff does not contend that there is direct evidence of discrimination in this
case. Therefore, to determine whether circumstantial evidence of discrimination
supports plaintiff’s claim, the Court applies the burden-shifting framework outlined in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Garrett v. Hewlett
Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). First, plaintiff must make out a
prima facie case of employment discrimination, see Garrett, 305 F.3d at 1216, which, in
the specific context of not being selected for an open position, consists of the following
elements: (1) the plaintiff belongs to a protected class, (2) the plaintiff applied and was
qualified for a job for which the employer was seeking applicants, (3) despite being
qualified, the plaintiff was rejected, and (4) after the plaintiff's rejection, the position
remained open and the employer continued to seek applicants from persons of the
plaintiff's qualifications. McDonnell Douglas, 411 U.S. at 802; see Fischer v.
Forestwood Co., Inc., 525 F.3d 972, 982-83 (10th Cir. 2008). If plaintiff identifies
evidence sufficient to make out a prima facie case, the burden shifts to defendant to
offer a legitimate, nondiscriminatory reason for failing to hire plaintiff for the position.
See Exum v. United States Olympic Comm., 389 F.3d 1130, 1134-35 (10th Cir. 2004).
If defendant does so, the burden shifts once more to Plaintiff to prove Defendant's
proffered reason merely a sham or pretext. See id. at 1135.
The Court need not determine whether plaintiff has identified evidence
preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to the non-moving party. Id.;
see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).
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supporting a prima facie case. Defendant asserts that it hired Lisa Leddy for the
position (instead of plaintiff) because Ms. Leddy “had substantive, recent retail
pharmacy experience and [because of] her knowledge of private sector insurance
formularies.” Docket No. 31 at 6, ¶ 46. These constitute legitimate, nondiscriminatory
reasons for hiring Ms. Lisa Leddy instead of plaintiff. In an attempt to demonstrate that
these reasons are pretextual, plaintiff argues that retail pharmacy experience was not
required for the position, identifies evidence of procedural irregularities in the hiring
process, and references defendant’s past history of hiring African Americans in the
BPO.
Under different circumstances, such evidence might be relevant to determining
whether defendant’s proffered reasons for hiring her were the actual reasons. See
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (“Pretext can be shown by
‘such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable factfinder
could rationally find them unworthy of credence and hence infer that the employer did
not act for the asserted non-discriminatory reasons.’”) (quoting Olson v. Gen. Elec.
Astrospace, 101 F.3d 947, 951-52 (3d Cir. 1996)). Here, however, plaintiff admits that
defendant “selected Leddy because she had substantive, recent retail pharmacy
experience and her knowledge of private sector insurance formularies.” Docket No. 31
at 6, ¶ 46; Docket No. 45 at 7, ¶ 46. Plaintiff argues that this fact is “immaterial”
because the position “did not require retail pharmacy experience.” Docket No. 45 at 7,
¶ 46; see Docket No. 45 at 18 (“[T]he wealth of information supports that retail
pharmacy experience was not a requirement of the position.”). However, “[t]he relevant
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inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but
whether it honestly believed those reasons and acted in good faith upon those beliefs.”
Rivera v. City and County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (internal
quotation marks and alterations omitted).2 Plaintiff’s contention that the actual reason
for Ms. Leddy’s hire constituted bad judgment or that Ms. Leddy’s hiring contravened
certain internal policies does not create a dispute material to her Title VII claim given
that plaintiff admits that Ms. Leddy was hired for reasons which are non-discriminatory.
See Simms v. Okla. ex rel. Dep’t of Mental Health and Substance Abuse Servs., 165
F.3d 1321, 1330 (10th Cir.1999) (noting that federal courts do not sit as “super
personnel department[s]” to “second guess[ ] employers’ business judgments”) (internal
quotation marks and citations omitted). Consequently, defendant is entitled to
summary judgment.
For the foregoing reasons, it is
ORDERED that defendant’s motion for summary judgment [Docket No. 31] is
GRANTED. Judgment shall enter in favor of defendant and against plaintiff. It is
further
ORDERED that the trial preparation conference scheduled for July 27, 2012 and
the trial scheduled to commence on August 6, 2012 are VACATED.

2

Moreover, “to suggest that an employer’s claim that it hired someone else
because of superior qualifications is pretext for discrimination rather than an honestly
(even if mistakenly) held belief, a plaintiff must come forward with facts showing an
‘overwhelming’ ‘disparity in qualifications.’” Johnson v. Weld County, Colo., 594 F.3d
1202, 1211 (10th Cir. 2010) (citation omitted). Plaintiff has failed to come forward with
such evidence here.
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DATED May 31, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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