Shahin v. State of Delaware et al

Filing 58

MEMORANDUM OPINION - Signed by Judge Leonard P. Stark on 4/8/13. (rwc)

.~

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
NINA SHAHIN,

Plaintiff,

v.

Civ. No. 07-643-LPS

STATE OF DELAWARE and OFFICE OF
MANAGEMENT AND BUDGET,

Defendants.

Nina Shahin, Pro Se, Dover, Delaware.
Plaintiff.
Aaron R. Goldstein and Laura L. Gerard, Deputy Attorneys General, Delaware Department of
Justice, Wilmington, Delaware.
Attorney for Defendants.

MEMORANDUM OPINION

April 8, 2013
Wilmington, Delaware

I.

INTRODUCTION
Plaintiff Nina Shahin ("Plaintiff") filed this action against Defendants, the State of

Delaware and its Office of Management and Budget ("Defendants"), alleging employment
discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII")
and the Age Discrimination in Employment Act C'ADEA"). (D.I. 2) Presently before the Court
is Defendants' motion for summary judgment (D.I. 45) as well as Plaintiffs motion for jury trial
(D.I. 50) and Plaintiffs motion for sanctions (D.I. 53). For the reasons that follow, the Court
will grant Defendants' motion for summary judgment and will deny as moot Plaintiffs motions.
II.

PROCEDURAL BACKGROUND
Plaintiff's charge of discrimination, dated December "11, 2006, asserts that Defendants

discriminated against her by reason of national origin (Ukrainian) and age, and retaliated against
her for previously filed charges of discrimination, when they did not hire her for the position of
senior accountant. (D.I. 2 at charge of discrimination) Plaintiff filed her complaint on October

16,2007.
The Court entered a Scheduling Order on April 14,2008, setting a discovery deadline of
October 16,2008 and a dispositive motion deadline of December 16,2008. 1 (D.I. 14) Plaintiff
served discovery requests (DJ. 19,20) on Defendants on July 13,2009, to which Defendants
responded (D.I. 21, 22) on August 13,2009. In March 2010, Plaintiff filed a request for an
extension oftime to complete discovery (D.I. 24) and, on May 4,2010, she filed a motion for

1This case was originally assigned to Chief Judge Gregory M. Sleet. It was reassigned to
the undersigned judge on August 24, 2011.
1

summary judgment (D.I. 26). After these motions were denied, Plaintiff appealed to the United
States Court ofAppeals for the Third Circuit. (See D.1. 35) The appeal was dismissed for lack
of appellate jurisdiction. (D.I. 36)
Thereafter, the parties were ordered to submit status reports (DJ. 37) and a second
scheduling order was entered on January 9, 2012 (D.1. 41), setting a new discovery deadline of
July 9,2012 and a new dispositive motion deadline of August 9,2012. Defendants served
Plaintiff with discovery requests, to which Plaintiff failed to respond. (D.I. 42,43,44)
Defendants filed the pending motion for summary judgment on August 9,2012.

III.

FACTUAL BACKGROUND
Plaintiff applied for the position of senior accountant (posting #10-06-38) in the State's

Office of Management and Budget. (D.I. 2 at charge of discrimination; D.1. 22 at OMB643-12)
Plaintiff, who is a white female, over fifty, ofUkranian descent, alleges that her credentials were
evaluated unreasonably low and she was denied an interview. (D.I. 2 at charge of discrimination)
The record does not include Plaintiff s work experience or educational background.
Erica Samson ("Samson"), a 29-year old white female of United States of America
national origin was hired for the position of senior accountant. (D.L 21 at interrog. No.1)
Samson has a Bachelors of Arts degree in marketing and management, two years experience as a
senior accountant, and five years experience as an account specialist. (/d. at interrog. No.2; D.L
22 at OMB643-1-7) Her application, dated September 14, 2006, states that as ofthe time she
applied for this position she was already a State employee. (DJ. 22 at OMB643-5. at Corp.642­
26)

2

... .,

Thirty-four applicants were given a rating based upon their training and experience. (Id.
at OMB643-8) Samson, along with two other applicants, received a "lateral" rating, which was
the top rating. (Id. at OMB643-11) One applicant received a "vol demo" rating, while Plaintiff
received a rating of88. 2 (!d.) Other applicants scored as high as 97 and as low as 80. (Id.)
Interviews were scheduled for fifteen individuals. (!d. at OMB643-16-20) Of those applicants
interviewed, three were scored as "lateral," one was scored as "vol demo," and others had scores
of97, 92, and 88. (Id.) Applicants with scores of95, 93, 90, and 88 were not interviewed. (Id.)
The "all applicant list" indicates that seven applicants were male and twenty-seven applicants
were female. (!d. at OMB643-21-23) There were twenty-six white applicants, six black
applicants, one Hispanic applicant, and one unknown. (!d.) Plaintiff was listed as white. (Id. at
OBM643-22) The application documents do not indicate the national origin of the applicants.
After she was not hired, on December 11, 2006 Plaintiff filed a charge of discrimination,
alleging national origin and age discrimination as well as retaliation for filing previous charges of
discrimination. (D.1. 2 at charge of discrimination) The responding party stated that Plaintiff
met the minimum qualifications for the position and that her name would be placed on the
register for one year from the date of application. (Id.)

IV.

LEGAL STANDARDS
"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 oflaw." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

2The court presumes "vol demo" means voluntary demotion.
3

586 n.10 (1986). An assertion that a fact cannot be - or, alternatively, is - genuinely disputed

..

~

must be supported either by citing to "particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only), admissions, interrogatory answers, or
other materials," or by "showing that the materials cited do not establish the absence or presence
of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact." Fed. R. Civ. P. 56(c)(1)(A) & (B). If the moving party has carried its burden, the
nonmovant must then "come forward with specific facts showing that there is a genuine issue for
trial." Matsushita, 475 U.S. at 587 (internal quotation marks omitted). The Court will "draw all
reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133,150 (2000).
To defeat a motion for summary judgment, the non-moving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586; see also Podohnik v. United States Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005)
(stating party opposing summary judgment "must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue") (internal
quotation marks omitted). However, the "mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment;" and a factual dispute is genuine only where "the evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S.
242,247-48 (1986). "If the evidence is merely colorable, or is not significantly probative,

4

summary judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex
Corp. v. Catrett, 477 U.S. 317,322 (1986) (stating entry of summary judgment is mandated
"against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial").
Thus, the "mere existence of a scintilla of evidence" in support of the non-moving party's
position is insufficient to defeat a motion for summary judgment; there must be "evidence on
which the jury could reasonably find" for the non-moving party. Anderson, 477 U.S. at 252.
With respect to summary judgment in a discrimination case, the Court's role is "to
determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light
most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of
material fact as to whether the employer intentionally discriminated against the plaintiff."
Hankins v. Temple Univ., 829 F.2d 437,440 (3d Cir. 1987).
Defendants move for summary judgment, or in the alternative for dismissal, on the basis
that there are no genuine issues as to any material fact and they are entitled to judgment as a
matter oflaw. Plaintiff opposes the motion on the grounds that she did not receive the January 9,
2012 scheduling order found at Docket Item 41. Plaintiff did not file a substantive response to
the motion.

V.

DISCUSSION
A.

SchedulinK Order

Plaintiff contends that the instant motion for summary judgment should not be considered
because she did not receive a service copy of the January 9,2012 scheduling order. She argues
that this is "another gross violation" of her constitutional rights of due process and equal

5

protection because the order was communicated to only one party. Plaintiff argues that, unless
the Court establishes a new scheduling order, granting Defendants' motion for summary
judgment will violate her right to due process and equal protection.
The Court docket for the January 9,2012 indicates that the scheduling order was sent to
Plaintiff at her address of record. It was not returned as undeliverable. In addition, the Court
docket reflects that Plaintiff propounded discovery upon Defendants and they responded to her
requests. Conversely, when Defendants served discovery requests upon Plaintiff (D.l. 42, 43,
44), she did not respond. Plaintiff states that she never received the discovery requests and
demanded proof of mailing. (See D.l. 51) Defendants provided Plaintiff with Federal Express
tracking documents confirming delivery to Plaintiff s address.
The Court finds Plaintiffs position unavailing. The record does not support Plaintiffs
position. The Court docket indicates that the scheduling order was sent to Plaintiff s address of
record and it was not returned as undeliverable. Similarly, the record reflects that Defendants
served Plaintiff with their discovery requests. Notably, there is nothing in the record to indicate
that Plaintiffs ability to litigate this matterwas hampered in any way. To the contrary, Plaintiff
was provided with the discovery she sought, while Defendants were not.
B.

Age Discrimination

Plaintiff alleges that Defendants discriminated against her on the basis of age, in violation
of the ADEA. She seeks damages and injunctive relief. The ADEA includes in its definition of
employer "a State or political subdivision of a State and any agency ... of a state." 29 U.S.C.
§ 630(b)(2). The Supreme Court has held that, in the ADEA, Congress did not abrogate the
states' sovereign immunity to suits for money damages by private individuals under the Eleventh

6

Amendment. See Kimel v. Florida Bd. ofRegents, 528 U.S. 62 (2000). While the Eleventh
Amendment pennits suits for prospective injunctive relief against state officials, see Ex Parte

Young, 209 U.S. 123 (1908), this doctrine "has no application in suits against the States and their
agencies, which are barred regardless of the relief sought," Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citations omitted).

Plaintiff filed her suit against the State of Delaware and its Office of Management and
Budget. She did not name any state officials. Defendants are immune from suit. Therefore, the
Court will grant the motion for summary judgment on the ADEA claim.

C.

National Origin Discrimination

Plaintiff alleges she was not hired due to her national origin. Defendants seek summary
judgment on the grounds that Plaintiff-failed to establish a prima facie case of discrimination and,
alternatively, they have articulated a legitimate, nondiscriminatory reason for selecting the
candidate they did.
Plaintiff has provided no direct evidence of discrimination by reason of her national
origin. 3 Thus, the Court turns to the McDonnell Douglas burden-shifting framework. Under this
framework, Plaintiff must first establish a prima facie case of discrimination by proving that:
(1) she is a member of a protected class; (2) she sought and was qualified for a job for which the
employer was seeking applicants; (3) despite her qualifications, she was rejected; and (4) under
circumstances that raise an inference of discriminatory action, the employer continued to seek out

3Under Title VII, "[t]he tenn 'national origin' on its face refers to the country where a
person was born, or, more broadly, the country from which his or her ancestors came." Espinoza
v. Farah Mfg. Co., 414 U.S. 86, 88 (1973).
7

individuals with qualifications similar to the plaintiff's to fill the position.4 See McDonnell

. Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Sarullo v. United States Postal Serv., 352

F.3d 789 (3d Cir. 2003); accord lyer v. Everson, 238 F. Applx 834 (3d Cir. Aug. 3, 2007).

If a plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant
employer to proffer a "legitimate non-discriminatory" reason for its actions. See Woodson v.

Scott Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997). Ifthe defendant meets this burden, the
burden again shifts to the plaintiff to demonstrate, by a preponderance of the evidence, that the
employer's rationale is pretextuaL See McDonnell Douglas, 411 U.S. at 804.
Here, Plaintiff alleges discrimination occurred after she applied for the senior accountant
position, when her credentials were evaluated unreasonably low and she was not interviewed.
Plaintiff previously provided several exhibits (see D.L 27) to the Court, none of which support
her claim of national origin discrimination. Moreover, the record does not include any evidence
that Defendants were aware of Plaintiffs national origin. Nor does it include evidence of her
education and experience.
Plaintiff has failed to establish a prima facie of discrimination. It is undisputed that
Plaintiff is of Ukrainian origin and that she was not interviewed for the senior accountant
position. However, there is no evidence Defendants were even aware of her national origin. The
evidence of record indicates only that she was classified as white, which is not a national origin.
Plaintiff makes the leap from an unsuccessful employment application to employment
discrimination based upon her national origin when there is no evidence of record to support an

4Defendants presume that Plaintiffs membership in a protected class and her failure to be
hired based solely on the face of the complaint, but they dispute whether her qualifications are
established on the present record. (See D.I. 46 at n.1)

8

inference of discrimination. See Iyer v. Everson, 238 F. App'x 834 (3d Cir. Aug. 3,2007)
(unsuccessful applicant for position did not establish prima facie case of discrimination because
he did not present evidence of circumstances that raised inference of discriminatory action; he
did not establish causal nexus between his membership in protected class and employer's
decision not to hire him).
Alternatively, even if Plaintiff could make out a prima facie case of national origin
discrimination, she has not produced evidence from which a reasonable juror could find that
Defendants' reason for their employment decision was a pretext for discrimination. When a
plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant-employer
to proffer a "legitimate non-discriminatory" reason for its actions. See Woodson, 109 F.3d at 920
n.2. If a defendant meets this burden, the burden again shifts to the plaintiff to demonstrate, by a
preponderance ofthe evidence, that the employer's rationale is pretextual. See McDonnell

Douglas, 411 U.S. at 804. To do this, plaintiff must "point to some evidence, direct or
circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's
articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause ofthe employer's action." Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994). "[T]o avoid summary judgment, the plaintiffs
evidence rebutting the employer's proffered legitimate reasons must allow a factfinder
reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a
post hoc fabrication or otherwise did not actually motivate the employment action (that is, the
proffered reason is a pretext)." Harding v. Careerbuilder, LLC, 168 F. App'x 535,537 (3d Cir.
Feb. 27, 2006) (internal citations and quotation marks omitted).

9

Defendants have met their burden by articulating a legitimate, nondiscriminatory reason
for not hiring Plaintiff. The successful candidate was hired based upon her credentials, which
included over seven years' experience working for the State of Delaware. Nothing before the
Court contradicts Defendants' proffered reason for their failure to hire Plaintiff. Nor is
Defendants' proffered reason for their action weak, incoherent, implausible, or so inconsistent
that a reasonable factfinder could rationally find it unworthy of credence. See Sarullo, 352 F.3d
at 800. Even construing the evidence in the light most favorable to Plaintiff, she has provided no
evidence from which a fact-finder could either disbelieve Defendants' articulated reason, or
believe that a discriminatory reason was more likely than not the cause of the employment action.
As there is no genuine dispute on the dispositive legal issue of whether Defendants had a
discriminatory motive, the Court will grant Defendants' motion for summary judgment on the
issue of national origin employment discrimination.

D.

Retaliation

Plaintiff appears to allege that she was not hired by Defendants in retaliation for
previously filed charges of discrimination. To the extent she raises such a claim, it, too, fails.
To establish a prima facie case of retaliation, a plaintiff must show: (1) she engaged in
protected activity; (2) the employer took a materially adverse action against her; and (3) there
was a causal connection between the protected activity and the employer's action. See LeBoon v.
Lancaster Jewish Comfy. Ctr. Ass 'n, 503 F .3d 217, 231 (3d Cir. 2007). Here, no reasonable
juror could find for Plaintiff on the retaliation issue. There is no evidence of record that an
adverse employment action was taken after, or contemporaneous with, a protected activity. Nor
is there evidence that Defendants had knowledge that Plaintiff had filed a previous charge of

10

discrimination or that hiring decisions were in any way influenced by her prior charge. Because
there is no evidence of a nexus between the filing of a charge of discrimination and Defendants'
hiring decision, the retaliation claim fails.
VI.

CONCLUSION
For the above reasons, the Court will grant Defendants' Motion for Summary Judgment

(D.I. 45) and will deny as moot Plaintiffs Motion for Jury Trial (D.I. 50) and Motion for
Sanctions (D.I. 53).
An appropriate Order follows.

11