Shahin v. State of Delaware Department of Finance
MEMORANDUM OPINION. Signed by Judge Leonard P. Stark on 08/08/14. (etg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 10-188-LPS
STATE OF DELAWARE DEPARTMENT
Nina Shahin, Pro Se, Dover, Delaware.
Laura L. Gerard and Stuart B. Drowos, Deputy Attorneys General, Delaware Department of
Justice, Wilmington, Delaware.
Attorneys for Defendant.
August 8, 2014
Plaintiff Nina Shahin ("Plaintiff'' or "Shahin") filed this action against Defendant the
State of Delaware Department of Finance ("Defendant") alleging employment discrimination and
retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e,
et seq.; the Age Discrimination in Employment Act ("ADEA''), 29 U.S.C. 629, et seq.; the
Americans with Disabilities Act ("ADA"); the Delaware Discrimination in Employment Act
("DDEA"), as amended, 19 Del. C. § 710, et seq.; and the Delaware Handicapped Persons
Employment Protection Act ("DHPEPA"), 19 Del. C. § 720, et seq. (D.I. 2) The Court has
jurisdiction pursuant to 28 U.S.C. § 1331and§1367. Presently before the Court are the parties'
cross-motions for summary judgment (D.I. 60, 62), as well as Plaintiff's motion for sanctions
(D.1. 68). For the reasons that follow, the Court will grant Defendant's motion and will deny
Shahin' s motions.
Shahin filed a charge of discrimination with the Department of Labor of the State of
Delaware ("DDOL") on January 7, 2009. (D.1. 21 Ex.) Shahin applied for the position of State
Accountant IV on April 26, 2008 and was interviewed for the position on June 2, 2008. She
contacted Defendant on October 30, 2008 regarding her status in the application process but
failed to obtain an answer clarifying her status. She made another inquiry on October 31, 2008.
Defendant's website indicated that the position remained open, but Defendant failed to hire
Shahin or advise her of her status. Shahin asserted that she was a qualified individual with a
disability who could perform the essential functions of the job in question either with or without
an accommodation. The charge of discrimination stated that Defendant failed to hire her based
upon her disability, age, national origin (Ukrainian), and in retaliation for filing previous charges
of discrimination. The DDOL found no reasonable cause to believe than an unlawful
employment practice had occurred, and a notice of right to sue issued on December 7, 2009.
(D.I. 2 Ex.) Plaintiff filed this action on March 8, 2010. (D.I. 2)
Thereafter, following a motion to dismiss filed by Defendant, the Court dismissed the
ADA and ADEA claims with prejudice and gave Shahin leave to amend. (D.I. 15) She filed an
amended complaint on July 1, 2011, alleging Defendant failed to hire her in violation of Title
VII, ADA, ADEA, DDEA, and DHPEP A on the bases of age and disability discrimination and
retaliation. (D.I. 18) Defendant moved to dismiss the amended complaint. The retaliation,
discrimination on the basis of national origin, and the DDEA claims survived the motion to
dismiss, while all other claims were dismissed. (D.I. 25) The parties now move for summary
judgment. In addition, Shahin moves for sanctions. (D.I. 23)
In April 2008, the Department of Finance's Division of Human Resources posted and
advertised an opening for the position of State Accountant N Help Desk Manager. 1 (D.I. 64 at
A-3) The position was summarized as follows:
This employee will be a key person to assist in the determination
[sic] the state's needs and plans for the State of Delaware's
Financials ERP Project Help Desk prior to system implementation.
The successful candidate will develop and implement initiatives,
plans, programs and systems to meet the state's needs and
participate in the hiring of staff. The employee will manage
The Department of Finance is a Cabinet-level agency of the State of Delaware. See 29
Del. C. § 8301 et seq.
approximately 13 staff upon "Go-Live" of the system and be
responsible for leading and providing financials help desk services
(D.I. 61 Ex. A at Ex. 1) According to Cheryl Sipple ("Sipple"), who participated in the hiring
process for the position at issue, the position focused more on service help desk and management
experience, not merely accounting experience or ability. (D.I. 61 Ex. A at 60-64; D.I. 64 at A-3)
The person who filled the position would manage and supervise a team of help desk staff trained
specifically to monitor and respond to incoming help requests from any of the 4,000 end-users
throughout the State for any of the eleven modules being used in the First State financials system.
(D.1. 64 at A-2) Applicants were compared on a number of factors, including interview
questions, and the applicants were compared to others in the applicant pool. (Id.) The
applications for vacant positions are received online, via the U.S. Postal Service, hand delivered,
and/or through state mail. (Id.) The applications were reviewed by the Department of
Finance/Division of Human Resource staff and thereafter applicants were deemed qualified or
not qualified for the position applied for based upon the application, supplemental questionnaire,
and resume (if submitted by the applicant). (Id.)
Sipple's superior, described as the functional manager, identified interview panels for
rounds one and two of the interview process. (Id.) The interview panels consisted of a male, a
female, and a person of "ethnic" origin. (Id.) The second round panel usually included the hiring
manager for the posted position. (Id.) The functional manager, assisted by the hiring manager,
compiled interview questions relative to the specific position posted. (Id.) The interview panels
and interview questions were submitted for approval to the Director of Human Resources for the
Department of Finance. (Id.) Following approval, a certification list of qualified applicants was
sent to the functional manager. (Id.) Neither the functional manager nor the interview panels
are aware of applicants who did, or did not, qualify for the open position. (Id. at A-2, A-3)
Based upon the number of applications received, the functional manager typically reviewed the
applications to determine the applicants selected for interviews. (Id. at A-3)
On February 6, 2008, Shahin applied for the limited-term position of State Accountant IV
with the Department ofFinance. 2 (DJ. 63 Ex. A at Ex. 6) Shahin was included on the
certification list prepared and selected for the first round of interviews. (DJ. 64 at A-2, A-3)
Eight other applicants were also selected for the first round of interviews. (DJ. 37, Answer to
Interrog. No. 4) Interviews were scheduled and the interview panel members were provided with
the applications selected for interview and interview questions. (DJ. 64 at A-3) The round one
interview panel members included Dawn Haw-Young ("Young"), Sipple, and Vemard
Wilkerson ("Wilkerson"). 3 (D.I. 37, Answer to Interrog. No. 94)
The first round of interviews took place in June 2008. (D.I. 64 at A-3) The applicants
interviewed in round one were asked the same questions. (D.I. 62 Ex. A at 56) Each panel
member took his or her own notes and individually scored each applicant based upon the
applicant's responses to the questions posed during the interview. (D.I. 64 at A-3) Once the
interviews were complete, each interview panel member submitted his or her respective scores to
the Human Resources Representative on the interview panel. (Id.) The Human Resources
Representative submitted the scores from the three panel members to the Division of Human
The position was for a limited term not to exceed one year. (See D.I. 61 Ex. A at Ex. 1)
According to Shahin, Wilkerson "apparently died in May of2013." (DJ. 61at3)
Resources, and the scores were used to determine how many, and which of the applicants, would
be interviewed in the second round of interviews. (Id.)
Shahin did not advance to the second round of interviews. Shahin has two Master of
Science degrees (one in taxation and one in accounting), accounting and taxation experience, and
experience as a professor. (D.I. 61 Ex. A at Ex. 6) Sipple testified that, while Shahin was a
qualified candidate, she did not meet the requirements needed for the service desk manager
position. (D.I. 62 Ex. A at 64) Sipple testified that during her interview, when asked about
service desk operations, Shahin spoke about being a professor and teaching accounting/tax
courses. (Id. at 61) Sipple stated that the job was "not for a tax instructor or a tax preparer. This
job was a service desk manager." (Id.)
The successful candidate was Tamika Leveridge ("Leveridge"), a 39-year old AfricanAmerican female, who was one of the top three candidates from the round one interview, was
brought back for a second interview, and hired for the position. (D.I. 37 Answer to Interrog. No.
8) Leveridge has a Bachelor's Degree in accounting, met the functional accounting skills, and
possessed experience overseeing a service help desk. (D.I. 37 Answer to Interrog. No.5; D.I. 40
at 10-188 149 to 164; D.I. 51 Ex. A at 61-64 and Ex.Cat 13)
Sipple, who interviewed Shahin, did not know of Shahin's Ukrainian descent prior to the
initial interview. (D.I. 64 at A- 3) According to Sipple, the information would not have affected
her hiring decision had Shahin been qualified for the position. (Id.) In addition, Sipple was
unaware that Shahin had filed prior complaints with the Equal Employment Opportunity
Commission ("EEOC"). According to Sipple, this, too, would not have affected her decision to
interview or possibly hire Shahin were she qualified. (Id.)
MOTION FOR SANCTIONS
Shahin moves for sanctions (D.I. 68) against defense counsel pursuant to Fed. R. Civ. P.
11 (b) on the grounds that they filed a motion for summary judgment without having any basis in
fact or law to do so, for harassing her during the depositions of witnesses, and for providing
"cover up" for perjury allegedly committed by two witnesses. Defendant opposes the motion.
The Court has reviewed Plaintiff's motion and finds it frivolous. Defense counsel has
taken no action to warrant the imposition of Rule 11 sanctions. Accordingly, the Court will deny
"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,
586 n. l 0 (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)(l)(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.
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 Podohnikv. 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,
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, 4 77 U.S. at 252. The
same standard applies when there are cross-motions for summary judgment. See Lawrence v.
City ofPhiladelpha, Pa., 627 F.3d 299, 310 (3d Cir. 2008).
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).
Shahin moves for summary judgment on the grounds that: (1) she established a prima
facie case of discrimination based upon national origin, sex, and age; and (2) Defendant's
proffered explanation for the failure to hire her is unworthy of credence. Defendant moves for
summary judgment on the grounds that: (1) Shahin failed to establish a prima facie case of
national origin discrimination; (2) Shahin failed to establish a prima facie case of retaliation;
(3) because Shahin chose to pursue her claims in federal court, the claims under Delaware law
should be dismissed; and (4) Shahin failed to exhaust administrative remedies with regard to the
sex discrimination claim.
National Ori2in Discrimination
Defendant seeks summary judgment as to Shahin's national origin discrimination claim
on the grounds that Shahin failed to establish a prima facie case of discrimination and,
alternatively, that it has articulated a legitimate, nondiscriminatory reason for selecting the
candidate it did.
Shahin has provided no direct evidence of discrimination. Thus, the Court turns to the
McDonnell Douglas burden-shifting framework. Under this framework, Shahin 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 individuals with
qualifications similar to the plaintiffs to fill the position. 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 Iyer v. Everson, 238 F. App'x 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 "legitimate non-discriminatory" reason for its actions. See Woodson v. Scott
Paper Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997). If the 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.
Shahin alleges discrimination occurred after she applied for the State Accountant IV Help
Desk Manager position and was interviewed, but was not called back for a second interview, and
a less qualified person was hired for the position. However, Shahin has failed to provide
sufficient evidence of circumstances raising an inference of discriminatory action. See Sarullo,
352 F.3d at 789-90. It is undisputed that Shahin is a female and is of Ukrainian origin and that
she was not selected for a second interview or hired for the State Accountant IV Help Desk
Manager position. But she rests her evidence of discrimination solely upon her own assertion
that she was not hired because of her national origin when there is no evidence to support her
claim. Indeed, the record does not include any evidence that Defendant, or its employees who
were involved in the employment process, were even aware of Shahin's national origin. Shahin
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 inference of
discrimination. See Iyer, 238 F. App'x at 836 (unsuccessful applicant for position did not
establish prima facie case of discrimination because he did not present evidence of circumstances
that raised an 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 Shahin could make out a prima facie case of national origin
discrimination, she has not produced evidence from which a reasonable juror could find that
Defendant's reason for its 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 v. Scott Paper
Co., 109 F.3d 913, 920 n.2 (3d Cir. 1997). If the 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. To do this, a 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 of the
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).
Defendant met its burden by articulating a legitimate, nondiscriminatory reason for not
hiring Shahin. The successful candidate was hired based upon the determination that she was
more suitable and better qualified for the position. In addition, the successful applicant had prior
experience operating at a service desk and supervising individuals, both essential functions for
the State Accountant IV Help Desk Manager position. Nothing before the Court contradicts
Defendant's proffered reason for its failure to interview Shahin a second time or to hire her. Nor
is Defendant's proffered reason for its 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 Shahin, she has provided no
evidence from which a fact-finder could either disbelieve Defendant's 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 Defendant had a
discriminatory motive, the Court will grant Defendant's motion for summary judgment and will
deny Shahin's motion for summary judgment on the issue of national origin employment
Shahin alleges that she was not hired by Defendant in retaliation for previously filed
charges of discrimination. 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 Shahin on the retaliation issue.
There is no evidence that Defendant, or any of its employees, had knowledge that Shahin
had filed prior charges of discrimination or that their hiring decisions were in any way influenced
by a prior charge of discrimination. Because there is no evidence of a nexus between the filing of
a charge of discrimination and Defendant's hiring decision, the retaliation claim fails.
Accordingly, the Court will grant Defendant's Motion for Summary Judgment on the retaliation
With regard to the sex discrimination claim, summary judgment for Defendant is proper
because Shahin failed to exhaust her administrative remedies. After a plaintiff files a charge of
discrimination against an employer and subsequently receives a right-to-sue letter, a plaintiffs
"ensuing suit [in district court] is limited to claims that are within the scope of the initial
administrative charge." Barzanty v. Verizon Pa., Inc., 361 F. App'x 411, 414 (3d Cir. Jan. 20,
2010) (citing Antal v. Perry, 82 F.3d 1291, 1296 (3d Cir. 1996)). To determine the "scope" of
the charge, a court must consider the extent of the investigation that "can reasonably be expected
Shahin did not move for summary judgment on the retaliation issue.
to grow out of the [EEOC] charge." Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978);
Howze v. Jones &Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984) ("[A] district court
may assume jurisdiction over additional charges if they are reasonably within the scope of the
complainant's original charges."). Accordingly, a plaintiff cannot "greatly expand an
investigation simply by alleging new and different facts" when later bringing claims in the
district court. Hicks, 572 F.2d at 967.
Shahin's charge of discrimination asserts national origin, retaliation, age, and disability
discrimination. It makes no mention of sex discrimination, which is raised for the first time in
the complaint. Given that the charge of discrimination does not even hint at sex discrimination,
it cannot be said that the sex discrimination claim is properly raised in the complaint. Even
liberally interpreting Shahin's charge of discrimination, a reasonable investigation of Shahin's
charges of national origin, retaliation, and age discrimination would not have encompassed the
claim of sex discrimination. Shahin's failure to exhaust her administrative remedies therefore
precludes her from bringing a sex discrimination claim before this Court. Accordingly, the Court
will grant Defendant's motion for summary judgment and will deny Shahin's motion for
summary judgment on the issue of discrimination by reason of sex.
Delaware Discrimination in Employment Act
Defendant moves for summary judgment on Shahin's DDEA claim. Under the DDEA,
employment discrimination is prohibited with respect to the protected classes of race, marital
status, genetic information, color, age, religion, sex and national origin. See 19 Del. C.
§ 71 l(a)(l).
The Court has determined that summary judgment is appropriate as to Shahin' s federal
claims raising national origin and sex discrimination and retaliation. In addition, the Court
previously dismissed with prejudice Shahin's claims of age, and disability discrimination raised
under federal law. 5 (See D.I. 15, 25) In light of the foregoing, the Court will exercise its
discretion and will decline to exercise supplemental jurisdiction over the DDEA claims. See 28
U.S.C. § 1367(c); see also Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639-40 (2009)
(noting purely discretionary abuse of standard ofreview); De Asencio v. Tyson Foods, Inc., 342
F.3d 301, 309 (3d Cir. 2003).
For the above reasons, the Court will deny Plaintiffs Motion for Summary Judgment
(D.I. 60), grant Defendant's Motion for Summary Judgment (D.I. 62), and deny Plaintiffs
Motion for Sanctions (DJ. 68). The Court will decline to exercise supplemental jurisdiction over
any state claims.
An appropriate Order follows.
To the extent that Shahin seeks summary judgment under the DDEA for alleged age
discrimination, the Court finds it similar to the claim of national origin discrimination in that
Shahin failed to establish a prima facie case of age discrimination and, even if she had,
Defendant provided a legitimate nondiscriminatory reason for its failure to hire her. See Fowle v.
C & C Cola, 868 F .2d 59, 61 (3d Cir. 1989) (holding that prima facie case of age discrimination
requires plaintiff to show that: (1) she belongs to the protected class; (2) she applied for and was
qualified for the job; (3) despite her qualifications she was rejected; and (4) the employer either
ultimately filled the position with someone sufficiently younger to permit an inference of age
discrimination or continued to seek applicants from among those having plaintiff's
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