Gethers v. McDonald et al

Filing 47

ORDER granting in part and denying in part 33 Motion for Summary Judgment for the reasons set forth in the Memorandum of Decision attached. Signed by Judge Vanessa L. Bryant on 4/5/2017. (Hudson, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
TERRY R. GETHERS,
Plaintiff,
v.
ROBERT A. McDONALD,
UNITED STATES OF AMERICA,
DEPARTMENT OF VETERANS
AFFAIRS VINS 1, OFFICE OF
EMPLOYMENT DISCRIMINATION
Defendants.

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3:15-cv-00177 (VLB)

April 5, 2017

MEMORANDUM OF DECISION GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [DKT. 33]
I.

Introduction
Plaintiff Terry Gethers (“Gethers” or “Plaintiff”) brings this employment

discrimination action against Defendants Secretary of the Department of
Veteran’s Affairs Robert A. McDonald, the Department of Veterans Affairs VISN-1,
the Office of Employment Discrimination, and the United States of America
(together, “Defendants”) under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621, et seq. The
Defendant moved for summary judgment and Plaintiff filed an opposition. [Dkt.
33 (“Motion”); Dkt. 40 (“Opposition”).] For the reasons that follow, Defendant’s
Motion is GRANTED in part and DENIED in part.
II.

Factual Background
The Department of Veterans Affairs provides healthcare to veterans

nationwide through a network of hospitals. Motion at 3 (citing Department of
Veterans Affairs, Locations, www.va.gov/directory/guide/division.asp?dnum=1

1

(last visited March 21, 2017). The hospital network is divided into 23 regions
called Veterans Integrated Service Networks (“VISN”). Id. Connecticut is in VISN1. Id.
Plaintiff is an African American male; he was 54 years old in 2012. [Dkt. 3313 (VA Discrimination Investigation Questionnaire of Gethers) (“Gethers’ VA
Questionnaire”) at 2.1] He has a Bachelor of Science in electrical engineering
from the University of Bridgeport. [Dkt. 33-3 (Deposition Transcript of Terry
Gethers (“Gethers Tr.”) at 4.] He has been employed by VISN-1 since 1990. [Dkt.
33-3 (Deposition Transcript of Terry Gethers (“Gethers Tr.”) at 2.] He has spent
most of his tenure at VISN-1 as a biomedical engineer but also spent an eight and
a half year period working in the information technology department. Id. at 3.
Gethers was appointed Acting Assistant Chief of Clinical Engineering for two
years, beginning in approximately November 2008 when the Assistant Chief fell
ill. Id. at 8, 10. He also assumed the role of Acting Chief of Clinical Engineering
around the same time. Id. at 10. Neither position required Gethers to “manage a
staff of people,” but rather required “medical knowledge and IT knowledge.” Id.
at 12. After serving as Acting Assistant Chief and Acting Chief of Clinical
Engineering he was not hired for either position on a permanent basis, but
instead “was asked to go back to [his] original position” as a “staff clinical
engineer.” Gethers Tr. at 26. The parties have not provided the Court with the
basis for that decision. Gethers received a positive performance evaluation for

1

Not all exhibits attached to the parties’ Summary Judgment briefing included
page numbers. Accordingly, for consistency, all citations to page numbers refer
to Electronic Court Filing System pagination.
2

the period from October 1, 2010 to September 30, 2011. [Dkt. 33-6.] The parties
have not provided the Court with Gethers’ other performance evaluations.
Gethers held a GS employment level of 13 throughout the relevant time period.
[Dkt. 33-5 (Gethers Employment Profile) at 13.]
Christopher Falkner (“Falkner”) is a Caucasian male who was 26 years old
in 2012. [Dkt. 33-7 (Deposition Transcript of Christopher Falkner) (“Falkner Tr.”)
at 6.] He graduated with a Master’s degree in clinical engineering from the
University of Connecticut in 2010. Falkner Tr. at 3-4. Falkner explained that
clinical engineering differs from biomedical engineering in that biomedical
engineers focus on manufacturing to design medical devices while clinical
engineering is the application of biomedical engineering in a clinical
environment, such as working with physicians in a hospital using medical
devices. Id. at 2. Falkner’s degree included training in project management skills
including “facilitation, leading meetings, creating documentation around
timelines and budgets.” Id. at 3. Falkner maintained a GS employment level of 12
throughout the relevant time period. Id. at 14.
VISN-1 holds monthly meetings open, but not mandatory, to regional
employees. Gethers Tr. at 26. Falkner regularly attended the monthly meetings
through the relevant time period. Falkner Tr. at 10. Gethers attended regularly
for a while, but stopped going as regularly because he “felt betrayed” when he
was asked to go back to his original position as a staff clinical engineer after he
ceased working as Acting Assistant Chief and Acting Chief of Clinical

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Engineering. Id. He had also trained “every newly hired Engineer, Technician,
and Intern at VA Connecticut.” Gethers’ VA Questionnaire at 8.
At one of the monthly meetings (the exact date of which has not been
provided to the Court), VISN-1 sought volunteers to help integrate new
technology in VA network hospitals. Falkner Tr. at 12. It was “typical for VISN-1 .
. . to seek volunteers from the region’s hospitals’ [Clinical Engineering] services
to assist with new initiatives and special projects.” [Dkt. 33-8 (Second
Declaration of Carolyn Mahoney) (“Mahoney Decl. 2”) at 1.] The project, ARK/CIS,
stands for Anesthesia Record Keeping Clinical Information System, and is a
“device integration platform” to “capture[] data from anesthesia equipment in the
operating room, as well as from patient monitoring systems in . . . ICU areas.”
Falkner Tr. at 5.
Falkner expressed interest in the ARK/CIS project to managers in the
regional VISN-1 office, and as a result became involved in early coordination
efforts. Falkner Tr. at 12-13. At a February 16, 2012 meeting, an announcement
was made that Falkner would be “participat[ing] in the ARK/CIS project” by
“help[ing] to coordinate with the national program office” in an informal capacity.
Falkner Tr. at 17. Falkner emphasizes that the role of ARK/CIS manager “did not
exist” at the time of the February meeting, and asserts the announcement only
indicated he would be helping to coordinate with the national program office.
Falkner Tr. at 17. He was not compensated for his involvement. Id.
Gethers understood the announcement to convey that Falkner had
“accepted the new ARK/CIS position” as manager. Gethers Tr. at 21, 34. Gethers

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submits declarations of three employees present at the February 16, 2012
meeting who understood the announcement to convey that Falkner had been
selected to take on a “new position” relating to the ARK/CIS project. [Dkts. 40-8,
40-9, 40-10.] None of the declarations specify whether the employees understood
Falkner to be taking on a permanent management position or an informal
coordination position. [Dkt. 40-10 (Declaration of Shakeela Nobles) at 2 (stating
the announcement was that Falkner had been “selected to a new position as the
VISN 1 ARK/CIS Coordinator”); Dkt. 40-9 (Declaration of Isaac McBride) at 2
(stating the announcement “congratulated Chris Falkner on his new position to
VISN 1 ARK/CIS position”); Dkt. 40-8 (Declaration of Jeremiah Harrington) at 2
(stating the announcement mentioned “the promotion of Chris Falkner to the CISARK position”).]
Falkner was involved in “quite a bit of effort leading up to the region
officially starting [the ARK/CIS] initiative,” including aligning VISN-1 with the
national framework and best practices. Id. at 12. On March 1, 2012, a Clinical
Engineering Newsletter announced Falkner was the “New VISN1 CIS-ARK
Coordinator.” [Dkt. 33-9.]
The first job posting seeking a manager for the ARK/CIS project was
posted on March 12, 2012. [Dkt. 33-29 (March 12, 2012 Job Posting) at 1.] The
position was listed as requiring a GS employment level of 13. Id. The job
description indicated the “Clinical Engineer” selected for the position would
“provide[] professional engineering support to a complex, technically
sophisticated, and service oriented Clinical Engineering Program,” including

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“healthcare technology strategic planning, pre-purchase assessment, acquisition
support, implementation coordination, equipment management, training, and
ongoing technical support activities” for the ARK/CIS initiative. Id. at 2. The
selected individual would also advise “on healthcare technology matters to
Network executive management, Network Program Officers, executive
management at all medical centers and clinical service lines, and facility
department directors” and provide “guidance to technical staff in all Clinical
Engineering Programs across the Network.” Id. Gethers did not apply to the
ARK/CIS position because he understood it had already been filled by Falkner
and his application would be futile. Gethers Tr. at 24.
No qualified applicants applied to the position posted on March 12, 2012.
[Dkt. 33-10 (Record of Position Applicants).] Falkner did not qualify because he
was only a GS level 12. Accordingly, the vacancy announcement was canceled
and the ARK/CIS management position remained unfilled. Id. The position was
reposted as requiring a GS level of 12 or 13 on May 7, 2012 and included the same
job description as the March 12, 2012 posting. [Dkt. 33-11 (May 7, 2012 Job
Posting) at 1.] Gethers applied for the position. [Gethers Tr. at 29; Record of
Position Applicants.] Of the six applicants for the May 7, 2012 job posting, only
Gethers and Falkner were deemed qualified and interviewed for the position.
Record of Position Applicants at 1.
Both Falkner and Gethers were interviewed for the position. [Dkt. 33-15
(Falkner and Gethers Interview Questions).] The interview was conducted via
telephone. [Dkt. 33-16 (VA Discrimination Investigation Questionnaire of Jason

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Atkins) (“Atkins’ VA Questionnaire”) at 2.] Both candidates were asked the same
preselected questions during their interviews including, for example: “What is
your experience with medical information systems?” and “How would you
describe your leadership style within a team?” Falkner and Gethers Interview
Questions at 1-4. The interview questions and a comparison of each interview
panelist’s notes regarding the candidates’ responses are included in a table at
Appendix A to this Decision. Gethers “thought the interview questions were very
relevant, and appropriate, and it provided an opportunity for [him] to display [his]
in depth knowledge of the subject matter. Gethers’ VA Questionnaire at 3.
When asked about the hiring process after Gethers filed his internal
discrimination complaint, all three panelists denied that Gethers’ age or race were
factors in Falkner’s appointment to the ARK/CIS management position. [Atkins’
VA Questionnaire at 5; Dkt. 33-17 (VA Discrimination Investigation Questionnaire
of Paul Neuhaus) (“Neuhaus’ VA Questionnaire”) at 3; Dkt. 33-24 (VA
Discrimination Investigation Questionnaire of Donald Morge) (“Morge’s VA
Questionnaire”) at 4.] Only one interview panelist professes he was unaware of
Gethers’ age or race until Gethers filed his Administrative Complaint,
emphasizing the interview took place over the phone. Atkins’ VA Questionnaire
at 2. Morge, who scored Falkner very highly in virtually all categories, was the
most critical of Gethers and did know Gether's age and ethnicity. Morge’s VA
Questionnaire at 2. Rather, panelists assert they chose Falkner for the position
because of his communication skills, ability to “manage troubled relationships
with coworkers,” ability to translate technical language into “lay person

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language,” project and management experience, and understanding of the flow of
computer-based systems form the medical device to the patient’s medical record.
Atkins’ VA Questionnaire at 4; Neuhaus’ VA Questionnaire at 3; Morge’s VA
Questionnaire at 4. The official in charge of final selection for the position also
denies that race or age was a factor in Falkner’s appointment, and instead cites
Falkner’s Master’s degree, project experience, and experience working with other
VISN managers as the basis for his selection. Dkt. 33-18 (VA Discrimination
Investigation Questionnaire of Carolyn Mahoney) (“Mahoney’s VA
Questionnaire”) at 3-4.]
Gethers received a formal notice from the Department of Veterans Affairs
on July 3, 2012 indicating he was not selected for the position. Dkt. 33-19 (Notice)
at 2.]. On July 17, 2012, the Department of Veterans Affairs circulated an
announcement that Falkner had accepted the position. [Dkt. 33-20.] On August 2,
2012, Falkner was formally reassigned to the ARK/CIS position. Falkner Tr. at 14.
Gethers initiated contact with an EEO counselor on August 3, 2012 and
received a Notice of Right to File a Discrimination Complaint on July 3, 2012.
[Dkt. 33-12 (Notice of Acceptance of Administrative Complaint) at 1.] On
November 1, 2012, Gethers filed a formal discrimination complaint asserting he
“was discriminated against on the bases of age and race (Black) when: On July 3,
2012, the complainant was informed that he was not selected” for the ARK/CIS
management position. [Id.; Dkt. 33-22 (Administrative Complaint).]
In January 2013, Falkner left VISN-1 and the ARK/CIS management position
was reposted. [Dkt. 40-26 (January 30, 2013 Job Posting).] Gethers again applied

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for the position, but the job posting was “cancelled or postponed” on March 19,
2013. Gethers’ VA Questionnaire. Mr. Cheng Ben-Zhang, previously an intern,
was transitioned into the role of “ARK/CIS Project Lead” on April 16, 2013. [Id. at
6; Dkt. 40-38 (April 16, 2013 Job Announcement).] Mr. Ben-Zhang is an Asian
male who was under 30 years old in 2013. Id. He was not hired from an open job
posting, but rather was transitioned into the role from an internship. Id.
III.

Standard of Review: Motion for Summary Judgment
“A party may move for summary judgment, identifying each claim or

defense—or the part of each claim or defense—on which summary judgment is
sought. The court shall grant summary judgment if 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. The court should state on the record the reasons for
granting or denying the motion.” Fed. R. Civ. P. 56(a). In order to prevail, the
moving party must sustain the burden of proving that no factual issues exist.
Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In determining
whether that burden has been met, the court is required to resolve all ambiguities
and credit all factual inferences that could be drawn in favor of the party against
whom summary judgment is sought. Id. (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986); Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). “If there is any evidence in the record that could reasonably
support a jury’s verdict for the nonmoving party, summary judgment must be
denied.” Am. Home Assurance Co. v. Hapag Lloyd Container Linie, GmbH, 446
F.3d 313, 315-16 (2d Cir. 2006) (quotation omitted). In addition, “the court should

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not weigh evidence or assess the credibility of witnesses” on a motion for
summary judgment, as “these determinations are within the sole province of the
jury.” Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996).
“A party opposing summary judgment ‘cannot defeat the motion by relying
on the allegations in [her] pleading, or on conclusory statements, or on mere
assertions that affidavits supporting the motion are not credible.’ At the
summary judgment stage of the proceeding, [p]laintiffs are required to present
admissible evidence in support of their allegations; allegations alone, without
evidence to back them up, are not sufficient.” Welch-Rubin v. Sandals Corp., No.
3:03-cv-481, 2004 WL 2472280, at *1 (D. Conn. Oct. 20, 2004) (quoting Gottlieb v.
County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)). “Summary judgment cannot
be defeated by the presentation . . . of but a ‘scintilla of evidence’ supporting [a]
claim.” Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir.
2010) (quoting Anderson, 477 U.S. at 251).
A court must make the threshold determination of whether there is the
need for a trial—whether, in other words, there are any genuine factual issues
that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party. Anderson, 477 U.S. at 250.
Judges are not required “to submit a question to a jury merely because some
evidence has been introduced by the party having the burden of proof, unless the
evidence be of such a character that it would warrant the jury in finding a verdict
in favor of that party. Formerly it was held that if there was what is called a
scintilla of evidence in support of a case the judge was bound to leave it to the

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jury, but recent decisions of high authority have established a more reasonable
rule, that in every case, before the evidence is left to the jury, there is a
preliminary question for the judge, not whether there is literally no evidence, but
whether there is any upon which a jury could properly proceed to find a verdict
for the party producing it, upon whom the onus of proof is imposed.” Anderson,
477 U.S. at 251 (citing Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 343
(1933); Coughran v. Bigelow, 164 U.S. 301, 307 (1896)). Indeed, summary
judgment should be granted where the evidence is such that it “would require a
directed verdict for the moving party.” Sartor v. Arkansas Gas Corp., 321 U.S.
620, 624 (1944).
“A party asserting that a fact . . . is genuinely disputed must support the
assertion by . . . citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c)(1). A party may also support their assertion by “showing that
the materials cited do not establish the absence . . . of a genuine dispute.” Id.
Cited documents must consist of either “(1) the affidavit of a witness competent
to testify as to the facts at trial and/or (2) evidence that would be admissible at
trial.” Local R. Civ. P. 56(a)3; see also Fed. R. Civ. P. 56(c)(4).
The Court need not consider any materials that the parties have failed to
cite, but may in its discretion consider other materials in the record. Fed. R. Civ.
P. 56(c)(3). If a party fails to properly support an assertion of fact, or fails to
properly address another party’s assertion of fact, the Court may grant summary

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judgment on the basis of the undisputed facts. D. Conn. L. Rule 56(a)(3) (stating
that “failure to provide specific citations to evidence in the record as required by
this Local Rule may result in the Court deeming certain facts that are supported
by the evidence admitted in accordance with [Local] Rule 56(a)(1) or in the Court
imposing sanctions, including . . . an order granting the motion if the undisputed
facts show that the movant is entitled to judgment as a matter of law”).
In addition, when a plaintiff is proceeding pro se, the defendant moving for
summary judgment must provide the pro se plaintiff with an “easily
comprehensible notice” as to the “nature and consequences of a summary
judgment motion.” M.B. v. Reish, 119 F.3d 230, 232 (2d Cir. 1997). Defendant has
done so here, and Plaintiff has responded with a memorandum of law and 31
evidentiary exhibits (and seven non-evidentiary exhibits such as a re-filed
Statement of Disputed Issues of Fact). Accordingly, the Court proceeds to
evaluate the Motion notice of which was properly given. Id. at 232 (finding pro se
Plaintiff understood Defendant’s Notice of Summary Judgment filing where
Plaintiff filed a memorandum of law opposing summary judgment and 104 pages
of exhibits).
Finally, “it is well established that the submissions of a pro se litigant must
be construed liberally and interpreted to raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
When a party exercises his or her “right of self-representation,” the Court is
obliged to “make reasonable allowances to protect pro se litigants from

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inadvertent forfeiture of important rights because of their lack of legal training.”

Id. at 475 (citing Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
IV.

Discussion
Defendants challenge Plaintiff’s claims on three grounds: failure to exhaust

administrative remedies, inclusion of improper defendants, and failure to assert a
question of fact whether Defendant’s hiring justifications were pretextual. The
Court evaluates each argument in turn.
a. Exhaustion of Administrative Remedies
Defendants argue the only adverse action at issue is the May 7, 2012
vacancy announcement to which Plaintiff applied and was not selected. Motion
at 7-8. The Court does not read Plaintiff’s Complaint as attempting to assert other
adverse actions that were not administratively exhausted, but to the extent the
Complaint could be interpreted as raising other adverse actions, the Court
addresses them here.
Both Title VII and ADEA claims must be administratively exhausted in order
to bring a civil claim. 42 U.S.C. § 2000e-16(c) (concerning race discrimination
claims); 29 U.S.C. § 633a(d) (concerning age discrimination). Claims that are
“reasonably related” to allegations in an administrative complaint are also
considered administratively exhausted. Mathirampuzha v. Potter, 548 F.3d 70, 76
(2d Cir. 2008). A claim is “reasonably related” if “the conduct complained of
would fall within the scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination.” Id. However, an
administrative complaint asserting discrimination on the basis of a certain

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protected class is not reasonably related to later claims of discrimination on the
basis of membership in other protected classes Clarke v. White Plains Hosp., 650
F. App’x 73, 75 (2d Cir. 2016) (finding not administratively exhausted claims of
race, national origin, and age discrimination where the administrative complaint
alleged only disability and “genetic predisposition” discrimination, but all
allegations were based on the same workplace event (see S.D.N.Y. Opinion, 2015
WL 13022510, for further facts)).
Plaintiff’s Complaint of Employment Discrimination filed with the
Department of Veterans Affairs asserts age discrimination based on Falkner’s
pre-selection for a job. [Dkt. 33-22 (Administrative Complaint) at 1.] Plaintiff
asserts in his Administrative Complaint that Falkner “was offered the job in
February of 2102, and the same job was posted in March 12, 2012.” Id. He
explains he “didn’t apply for the job in March 2012 because [he felt the] selection
announcement had already been made.” Id. He also notes the “same job was
posted again in May 2012,” and he applied for that opening because he “thought
the second posting was an additional job.” Id. Falkner (the “original selected”
applicant) was awarded the position. Id. Gethers purposefully omitted an
allegation of discrimination on the basis of race from his Administrative
Complaint: “In the very beginning, I stayed away from the race card, because I did
not want to believe that these people that I work with thought like that.” . . . I said
more – that I thought it was more age, you know, as opposed to race.” Gethers
Tr. at 33. However, at some point during the Administrative Complaint process,
Gethers made clear that he alleged both age and race discrimination. [Dkt. 33-12

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(Notice of Acceptance of Administrative Complaint).] By February 11, 2013, the
Department of Veterans Affairs gave Notice it had accepted Gethers’
Administrative Complaint alleging he was “discriminated against on the bases of
age and race (Black) when: On July 3, 2012, the complainant was informed that he
was not selected” for the ARK/CIS management position. Id.
Because Gethers’ complaints of age and race discrimination based on the
May 7 vacancy announcement and corresponding July 3, 2012 hiring decision
were accepted, investigated, and processed by the Department of Veterans
Affairs Office of Resolution Management, the Court deems those claims were
administratively exhausted for the purpose of this action. To the extent Gethers
seeks to raise any other allegations of discrimination in his Complaint those
allegations were not raised or adjudicated administratively and therefore are not
administratively exhausted and must be dismissed.
b. Claims Against Improper Defendants
All claims under Title VII or ADEA must be raised against the head of the
offending agency. 42 U.S.C. § 2000e-16(c) (stating a complainant may raise an
administratively exhausted claim of race discrimination against the “head of the
department, agency, or unit”); Tennant v. U.S. Bureau of Prisons, 3:02-cv-00558,
2003 WL 1740605, at *2 (D. Conn. Mar. 29, 2003) (dismissing certain defendants
because the “only proper defendant in an age discrimination suit against a
federal employer is the head of the federal agency”); Varville v. Rubin, 3:96-cv00629, 1998 WL 681438, at *6 (D. Conn. Aug. 18, 1998) (same). The head of the
Department of Veterans Affairs, Plaintiff’s employer, is the Secretary of Veterans

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Affairs. All claims against Defendants other than former Secretary of Veterans
Affairs Robert A. McDonald must be dismissed.
c. Plaintiff’s Age and Race Discrimination Claims
To state a claim for race or age-based employment discrimination, a
complainant must establish a prima facie case of racial discrimination by
showing:
(i)
(ii)
(iii)
(iv)

that he belongs to [a protected group];
that he applied and was qualified for a job for which the
employer was seeking applicants;
that, despite his qualifications, he was rejected; and
that, after his rejection, the position remained open and the
employer continued to seek applicants from persons of
complainant's qualifications.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Byrne v. Cromwell,
Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) (superseded other grounds) (stating
the McDonnell proof framework applies race discrimination claims under Title VII
as well as age discrimination claims under ADEA). If the complainant makes out
a prima facie case, the burden then shifts to the employer to “articulate some
legitimate, nondiscriminatory reason for the employee’s rejection. Id. at 802-03.
If employer does so, the burden shifts back to the complainant to show the
employee’s legitimate, nondiscriminatory reason is a pretext for prohibited
discrimination. Id. at 804. To establish pretext, the complainant may raise “facts
as to the [employer’s] treatment of [complainant] during his prior term of
employment; [the employer’s] reaction, if any, to [complainant’s] legitimate civil
rights activities; and [the employer’s] general policy and practice with respect to
minority employment.” Id. at 804-05.

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Where a complainant shows a prima facie case and the employer raises a
legitimate, non-discriminatory purpose for the hiring decision, but the
complainant “cannot offer direct evidence of an improper discriminatory bias,”
the complainant must rely on the “strength of his prima facie case combined with
circumstantial evidence that [the employer’s] stated reason for failing to hire [the
complainant] is pretext” in order to defeat summary judgment. Byrne, 243 F.3d at
102. The Court “must respect the employer’s unfettered discretion to choose
among qualified candidates,” and “does not sit as a super-personnel department
to reexamine a firm’s business decisions about how to evaluate the relative
merits of education and experience in filling job positions.” Id. at 103; NewsomLang v. Warren Int’l, Inc., 80 F. App’x 124, 126 (2d Cir. 2003). However, “an
employer’s disregard or misjudgment of a plaintiff’s job qualifications may
undermine the credibility of an employer’s stated justification for an employment
decision.” Id. Where the “credentials of the person selected for the job” are such
that “no reasonable person . . . could have chosen the candidate selected over
the plaintiff,” the employer’s hiring decision may not stand. Barry v. New Britain
Bd. of Educ., 300 F. App’x 113, 114 (2d Cir. 2008) (citing Byrne, 243 F.3d at 103).
The record includes evidence establishing the prima facie factors: Gethers
is a member of two protected classes in that he is African American and was 54
years old at the time in question. Gethers’ VA Questionnaire at 2. He applied and
was deemed qualified for the May 7, 2012 job posting. Gethers Tr. at 29; Record
of Position Applicants at 1. Despite his qualifications, Gethers was notified on
July 3, 2012 that he was not selected for the position. Notice at 2. After Gethers’

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rejection, Falkner was formally appointed to the position of ARK/CIS manager on
July 17, 2012. [Dkt. 33-20.]
Defendant does not challenge whether Gethers has established a prima
facie case of age or race discrimination based on the May 12, 2012 hiring
decision. Motion at 16. Rather, Defendant asserts he has raised a legitimate,
nondiscriminatory reason for the hiring decision which Gethers has failed to
establish was a mere pretext for discrimination. Id. Specifically, Defendant
argues Gethers was not chosen for the ARK/CIS management position because
“he did not outperform the other candidate in the selection process.” Motion at
16. Defendant cites Falkner’s Master’s degree which involved training in project
management, voluntary assistance with the beginning stages of the ARK/CIS
initiative, and project management experience as the basis for his employment.
Falkner Tr. at 3-4, 12-13. The panelists and final decision-maker for the ARK/CIS
position asserted during the VA investigation into Gethers’ Administrative
Complaint that they chose Falkner based on his education, communication and
management skills, project management experience, and understanding of the
types of technological systems that were the basis of the ARK/CIS program.
Atkins’ VA Questionnaire at 4; Neuhaus’ VA Questionnaire at 3; Morge’s VA
Questionnaire at 4; Mahoney’s VA Questionnaire” at 3-4. The panelists’ notes
from the interviews themselves also indicate Falkner’s interview answers
demonstrated “good understanding of projects,” “good understanding of where
technology is going,” “good demonstration of logic and communication,” and

18

ability “to lead in midst of disagreement.” Falkner and Gethers Interview
Questions at 1-2.
By contrast, the panelists’ notes from Gethers’ interview indicate “no
knowledge of overall position” and failure to “demonstrate leadership.” Id. at 3-4.
Panelist Atkins noted “concern about [Gethers’] ability to communicate in [a]
non-technical way to clinicians.” Id.
Gethers asserts Defendant’s legitimate, nondiscriminatory reason for
hiring Falkner is mere pretext for age and race-based discrimination. Gethers
believes it is “not possible” that Falkner was best qualified for the promotion in
question because Gethers has “bailed [Falkner] out quite a few times” and “every
time there’s a technical issue, . . . they call [Gethers].” Id. at 14. Gethers
elaborated that he has “bailed [Falkner] out” by working with him on the bar code
medication administration to prevent loss of data. Id. at 14-15. Gethers reiterated
throughout his deposition that he “think[s] Mr. Falkner was preselected because
of his race . . . [and] age” “because of [Gethers’ superior] qualifications.” Id. at
36. In other words, Gethers thinks that Faulkner must have been chosen for an
impermissible reason because he was more qualified than Falkner.
In further support of Gethers’ preselection theory, he argues the interview
panel was less likely to appoint anyone but Falkner once he was participating in
ARK/CIS conference calls regularly, reasoning “why would you change the
quarterback in the fourth quarter?” Gethers Tr. at 31. He asserts the members of
the hiring panel also participated in the ARK/CIS coordination conference calls,
but provides no documentation establishing their participation in the conference

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calls. Id. at 30-31. He asserts those individuals should have recused themselves
from the hiring panel. Id. at 31. Gethers offers no reason other than Falkner's
age and race why Falkner may have been considered more qualified for the
promotion.
Gethers does however argues he was discriminated against on the basis of
his age and race because he is “the only African American engineer, male
engineer over 40, . . . in VISN-1” and he has “applied for five jobs and . . . been
denied all five jobs.” Id. at 34. Gethers elaborated that the five jobs for which he
unsuccessfully applied were “assistant chief, chief of clinical engineering, RTLS
manager, ARK/CIS manager, and – well, the medical one. I never got a chance to
apply for that one. . . . but I had applied for the ARK/CIS twice.” Id. at 34. Gethers
also asserts there is “no one of color” in “the whole management” of VISN-1. Id.
at 36. In addition, “all of the hires in the past 2 years for VISN 1 Clinical
Engineering Consolidated Program are all under thirty (30) years of age, and all
have accelerated in 2-3 years.” Gethers’ VA Questionnaire at 12.
Gethers also admits Falkner “is a smart guy . . . He’s very bright . . . And for
me to sit here and say that no one can do that job but me is ludicrous, because
that is not the case . . .” Id. at 16. When asked whether the interview panel
discriminated against him on the basis of his race, he responded “I don’t know
what it is, why they did it.” Id. at 31-32. When asked whether the interview panel
discriminated against him because of his age, Gethers answered “I don’t know.”

Id. at 33. Gethers does not assert anyone at VISN-1 has “ever said or done

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anything that [he] took to be racist,” although he elaborated that “someone who
is racist, I mean, they can mask it pretty well. You never know.” Id. at 37.
The Court finds the interview panelists’ and final decision-maker’s
responses to VA investigation questioning unpersuasive given their timing:
Gethers received a formal notice from the Department of Veterans Affairs on July
3, 2012 indicating he was not selected for the position. [Dkt. 33-19 (Notice) at 2.].
On July 17, 2012, the Department of Veterans Affairs circulated an announcement
that Falkner had accepted the position. [Dkt. 33-20.] On August 2, 2012, Falkner
was formally reassigned to the ARK/CIS position. Falkner Tr. at 14. Gethers
initiated contact with an EEO counselor on August 3, 2012 and received a Notice
of Right to File a Discrimination Complaint on July 3, 2012. [Dkt. 33-12 (Notice of
Acceptance of Administrative Complaint) at 1.] On November 1, 2012, Gethers
filed a formal discrimination complaint asserting he “was discriminated against
on the bases of age and race (Black) when: On July 3, 2012, the complainant was
informed that he was not selected” for the ARK/CIS management position. [Id .;
Dkt. 33-22 (Administrative Complaint).] The investigation questionnaire
responses were not completed until April 2013, approximately ten months after
the hiring process and six months after Gethers lodged his first complaint.
Atkins’ VA Questionnaire; Morge’s VA Questionnaire; Neuhaus’ VA
Questionnaire; Mahoney’s VA Questionnaire. They do not represent present
sense impressions. Fed. R. Evid. 803(1) (“A statement describing or explaining
an event or condition, made while or immediately after the declarant perceived it”
is “not excluded by the rule against hearsay.”); see also, e.g., Kokoska v.

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Hartford, 2014 WL 4724879, at *1 (D. Conn. Sept. 23, 2014) (excluding statement
describing a prior event because it was not written “while or immediately after”
the author experienced the event, explaining “the key to this hearsay exception is
the time factor”). Even if they fell within a hearsay exception, the hiring officials’
statements were made once the discrimination investigation had begun and are
inconsistent with the record as a whole. The Court concludes that a trier of fact
may not find them credible.
Unfortunately, the interview panelists’ notes made at the time of Falkner
and Gethers’ interviews are not nearly as clear or thorough as the panelists’
answers to the investigation questionnaire. As is evidenced by the chart
attached at Appendix A, evidence of Falkner and Gethers’ actual interview
responses is scant. The Court notes that Defendant’s failure to better document
the basis for its hiring decision at the time is suspect.
The Court focuses on the limited records provided from the time of the
hiring decision. The panelists did not thoroughly record each interviewee’s
answers, but rather wrote sporadic notes that are difficult to decipher. Falkner
and Gethers Interview Questions. However, the Court can draw certain
conclusions based on those limited notes and the record as a whole. Id. For
example, the first question asked for the applicant’s understanding of the duties
of the ARK/CIS management position. Id. It appears both Falkner and Gethers
discussed the need to collaborate with the Office of Information Technology
(“OIT”), Informatics (data processing), and Clinical Engineers (“CEs”). Id.
Falkner also mentioned the position would involve preplanning and follow-up, but

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did not elaborate. Id. The panelists found Falkner had a “good understanding” of
the projects, roles and responsibilities of CEs, OIT, and Informatics (which
appears to be a separate department), and gave his first answer a combined
score of 13 (each question appears to have had a maximum possible score of 15,
with each panelist rating the answer out of 5). Id. The panelists found Gethers
showed a “limited understanding of the position and system it supports,” and
gave his answer a combined score of 9.5. Id. The Court can discern no
substantive difference between the two applicants’ answers to Question One
which justify such disparate reactions.
One of the most striking disconnects between the applicants’ answers and
the panelists’ scores occurred at Question Four, which asked applicants to
describe their experience with medical information systems. Id. Falkner noted
his involvement in starting the ARK/CIS system and “limited experience” with
other technology. Id. He discussed his “lack of training” with interfaces but
“knowledge of who to bring to the table.” Id. Gethers described working with OIT
to get a technological program to “communicate to” medical imaging technology
and other programs. Id. It is also known from the record that Gethers’
experience includes two years as Acting Assistant Chief and Acting Chief of
Clinical Engineering. Gethers Tr. at 8-10. The panelists noted Falkner’s “limited
involvement” with medical information systems and “minor experience,” and
gave him a score of 9. Falkner and Gethers Interview Questions. The panelists
noted Gethers has a “good understanding” of technology but “does not know
what [the ARK/CIS] project is” and “drifted” in his answer. Id. They gave him a

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score of 7. Id. The disparity between the two candidates’ scores and their
experience with medical information systems, including how they conveyed that
experience in response to question four, is irreconcilable. In fact, the panelists
did not attempt to explain why they viewed Gethers’ experience with medical
information systems warranted a lower score, but instead focused on Gethers’
lesser understanding of the ARK/CIS project. While Falkner may have had a
greater understanding of the ARK/CIS project due to his involvement with its
early implementation, the scope of the question was “experience with medical
information systems” – an area where Gethers, with decades of experience
including leading the Clinical Engineering department, is the stronger candidate.

Id.
Similarly, Question Nine asked the applicants to describe their leadership
style within a team. Id. Falkner stated his leadership style is to work as a
member of the team and speak up if he disagrees. Id. As an example, he
described a time he worked on a project with clinical staff and vendors and
identified issues to resolve through “controlled,” respectful conflict. Id. Gethers
discussed his tenure as Acting Chief and Acting Assistant Chief of Clinical
Engineering and stated he leads by gaining the respect of his peers and staff who
may be reluctant to change. Id. The panelists noted Falkner was a “member of
the team” and could “lead in [the] midst of disagreement” and gave him a
leadership score of 12. Id. The panelists asserted Gethers gave “poor leadership
examples” and “did not demonstrate leadership but rather a peer relationship,”
and gave him a score of 6.5. Id. The panelists’ conclusion that Gethers’

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discussion of his time as an Acting Chief and Acting Assistant Chief of a
department was a “poor leadership example,” but that Falkner’s ability to be a
“member of the team” showed stronger leadership skills, is illogical. Id.
The Court need not discuss all nine interview questions and panel
evaluations; they are consistent with those previously described. The
discrepancy between the panelists’ assessments and the applicants’ interview
responses, combined with the record as a whole, creates a question of fact
whether the Defendant’s hiring decision was legitimate and non-discriminatory,
or was a mere pretext for discrimination.
While the Court respects Defendant's authority to determine who is
qualified to fill its positions and is not supplanting its judgment for that of
Defendant; it finds that a jury may find that Defendant's non-discriminatory
reasons are pretextual both because of their content (or lack thereof) and their
timing.
Other record evidence creating a question of fact includes Gethers’ service
as Acting Assistant Chief and Acting Chief of Clinical Engineering for two years,
after which he was “asked to go back to [his] original position” as a “staff clinical
engineer,” and the Court has been provided no evidence explaining why he was
not retained in those leadership positions permanently. Gethers Tr. at 26. In
addition, Gethers testified in his deposition that he “stepped in” and “wrote up
the SOW, the scope of work, everything” for an initiative involving the “bar code
medication administration system” because Falkner “wasn’t getting [it] done.”

Id. at 15. Gethers has also testified that he “bailed [Falkner] out” by solving

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“serious issues” with a “neurology server” that had been “losing data . . . for
patients.” Id. at 14. Gethers also noted in his investigation questionnaire that he
has trained “every newly hired Engineer, Technician, and Intern at VA
Connecticut.” Gethers’ VA Questionnaire at 8. Finally, Gethers asserts there is
“no one of color” in “the whole management” of VISN-1 and “all of the hires in
the past 2 years for VISN 1 Clinical Engineering Consolidated Program are all
under thirty (30) years of age, and all have accelerated in 2-3 years.” Gethers Tr.
at 36; Gethers’ VA Questionnaire at 12. All of this evidence, combined with the
incongruous reasoning behind the interview panel’s assessments, calls into
question whether the Defendant’s basis for his hiring decision was indeed
legitimate and non-discriminatory.
Conversely, the Court also cannot conclude definitively at this juncture that
Defendant’s hiring decision was a mere pretext for discrimination. There are
facts in the record supporting Falkner’s appointment. Falkner holds a Master’s
degree in Clinical Engineering with specific training in project management.
Falkner Tr. at 2-3. The May 7, 2012 job posting suggests Falkner’s degree lent
particularly relevant training, as the ARK/CIS manager would provide
“professional engineering support [for] a technically sophisticated, and service
oriented Clinical Engineering Program” and “executive management at all
medical centers.” By contrast, Gethers holds a Bachelor of Science in Electrical
Engineering. Gethers Tr. at 4. However, Gethers has spent over twenty years
working at VISN-1 as a biomedical engineer and in the information technology
department. Id. at 2-3. Whether Falkner’s advanced, specialized degree made

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him more qualified for the ARK/CIS management position than Gethers’ degree in
a different area of engineering and many years of experience is not discernable
from the record before the Court; therefore there is a question of fact for a jury.
Defendant’s Motion for Summary Judgment on Gethers’ age and race
discrimination claims based on the May 7, 2012 job posting must be denied.
Gethers’ preselection claim, however, cannot survive summary judgment.
The call for volunteers to help coordinate the initial stages of the ARK/CIS
program was announced at a monthly VISN-1 meeting which Gethers could have
attended. Falkner Tr. at 12. The record indicates anyone could have volunteered
to help integrate the new ARK/CIS technology, and Gethers did not. Id.
Consequently, Falkner, who did volunteer, became familiar with the ARK/CIS
system and those involved in its implementation through approximately six
months of conference calls and coordination efforts between his appointment as
a volunteer coordinator and his appointment as permanent manager. Id. Gethers
has presented no evidence suggesting others could not have volunteered to help
with the early implementation of the ARK/CIS program as Falkner did, or that
Falkner’s voluntary early participation was an impermissible guarantee that he
would be appointed to the eventual ARK/CIS management position. If the
interview panel found Falkner’s voluntary assumption of early ARK/CIS
responsibilities made him a stronger applicant for the manager position, it was a
valid consideration which Gethers has tacitly acknowledged. Id. Falkner took it
upon himself to become familiar with the new technology while Gethers chose
not to avail himself of that opportunity. It would not be discriminatory

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preselection to choose such a candidate for a job based on his initiative and
familiarity with relevant technology. Summary judgment is GRANTED as to
Gethers’ preselection claim.
V.

Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is

GRANTED as to Plaintiff’s preselection claim. Defendant’s Motion for Summary
Judgment is DENIED as to Plaintiff’s age and race discrimination claims based on
the May 7, 2012 job posting raised against the Secretary of Veterans Affairs.
IT IS SO ORDERED.
____/s/_________________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: April 5, 2017

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