Webber v. Fanning

Filing 117

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 89 Motion for Summary Judgment. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
MELVA WEBBER,
Plaintiff,
v.
MARK T. ESPER, Secretary,
Department of the Army, in his
official capacity,
Defendant.

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Case No. CIV-16-552-KEW

OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for
Summary Judgment and Memorandum in Support Thereof (Docket Entry
# 89).

Upon review and consideration of the filings of the

parties, this Court renders the following ruling.1
Plaintiff, a 67-year old, African-American female, was an
employee at the McAlester Army Ammunition Plant for several years
prior to applying for an open Management Analyst position (GS-9)
in the Spring of 2010.

At the time she applied for the position,

Plaintiff was employed in a Management Assistant position (GS-7).

1
As an initial matter, the Court notes Plaintiff’s failure to
follow the specific requirements of Federal Rule of Civil Procedure 56
and Local Rule 56.1.
In her response, Plaintiff failed to properly
respond to Defendant’s statement of material facts not in dispute, as
she failed to state whether Defendant’s facts were disputed or
undisputed. Moreover, in Plaintiff’s statements of controverted facts
not cited by Defendant, Plaintiff lists additional statements in question
form and does not cite “with particularity, to any evidentiary material”
in support of her statements. See Fed. R. Civ. P. 56.1(c); LCvR 56.1(c)
and (d).

The Management Analyst position required the following job
duties:

(1)

administering

the

records

management

program,

including monitoring, inspecting, and preserving Army records at
the

plant

and

approving

or

disapproving

acquisition

and

reallocation requests for relevant equipment; (2) administering
the copier program, including approving and disapproving requests
for copiers, generating reports, and analyzing data to determine
future

needs;

including

(3)

review

serving
and

as

the

approval

of

forms

management

request

for

officer,

new

forms,

standardization of forms, and design of new forms; and (4) serving
as forms control officer, which involved ordering and distributing
forms and publications for the installation.

In carrying out the

job duties, the employee was expected to conduct studies and
recommend improvements, communicate well with individuals in a
variety of positions within and outside the organization, take
initiative

in

developing

the

best

approaches

to

potential

problems, keep supervisors informed of progress and potential
problems, and make critical decisions regarding the best way to
accomplish goals for the records, copier, and forms management
programs.
To qualify for the position, an applicant was required to
have one year of specialized experience at the GS-7 level and
experience in (1) records and forms management; (2) formulating
written and verbal summaries with results and conclusions; and (3)
2

evaluating and analyzing information, interpreting guidance, and
conducting studies for recommendations.
Shannon Dannelley, who served as the Director of Information
Management at the ammunition plant in the Spring of 2010, had been
Plaintiff’s first level supervisor since at least 2008.

In 2010,

at the time Plaintiff applied for Management Analyst position,
David Clemons, Chief of IT Services of the Management Division,
was

Plaintiff’s

first

supervised Mr. Clemons.

level

supervisor,

and

Ms.

Dannelley

Although Mr. Clemons was the selecting

official for the Management Analyst position, because he was new
to his position and Ms. Dannelley was the approving official, she
assisted with the selection for the Management Analyst position.
Once the applications were received, the Civilian Personnel
Advisory Center, which performed human resources functions for
civilian

employees

at

the

ammunition

plant,

reviewed

the

applications and generated a referral list of applicants who were
considered qualified for the position.
Ms. Dannelley and Mr. Clemons reviewed the resumes of the
qualified candidates and both decided Jeneal Dotte was the best
qualified

candidate

for

the

Management

Analyst

position.

Mr.

Clemons submitted Ms. Dotte’s name to Ms. Dannelley for approval,
which she approved and then advised the Office of Equal Employment
Opportunity and the Civilian Personnel Advisory Center of Ms.
Dotte’s selection for the position.
3

According to Ms. Dannelley, Ms. Dotte was selected for the
position “because her experience included significant leadership
experience and independence in carrying out her relevant duties,
which were carried out by way of her position as a Sergeant in the
Army Reserves, including serving as a lead running the post office
in Baghdad, Iraq, as well as experience serving as Suggestion
Program Coordinator at [the ammunition plant].”

She also had

experience with the Freedom of Information Act and with the Privacy
Act.

Although Plaintiff was qualified for the position, Plaintiff

had less leadership experience than Ms. Dotte.

Ms. Dannelley

stated that Ms. Dotte’s experience was important to the position
because the position would involve significant interaction with
people in and outside the organization.
supervisory

experience

would

help

She believed Ms. Dotte’s

her

with

performing

lead

functions as records manager.
After Ms. Dotte was selected for the position, Plaintiff filed
a

complaint

Commission

with

(“EEOC”),

the

Equal

claiming

she

Employment
was

denied

Analyst position based upon her race and age.

the

Opportunity
Management

Her claims were

denied by final order on July 8, 2014, and the agency’s final order
was affirmed on appeal by the EEOC on September 22, 2016.
Plaintiff

commenced

this

action

on

December

13,

2016,

alleging race discrimination in violation of Title VII of the Civil
Rights

Act

(“Title

VII”)

of

1964
4

and

age

discrimination

in

violation of the Age Discrimination in Employment Act (“ADEA”) of
1975.

Plaintiff

associated

with

also

asserts

Defendant’s

retaliation

actions

and

during

discrimination

2012

and

2013.

Defendant filed the subject Motion, contending Plaintiff cannot
prevail on her race and age discrimination claims.2

As noted in Defendant’s motion, the EEOC’s decision
specifically focused on Plaintiff’s discrimination claims related
to her non-selection for the 2010 Management Analyst position. It
did
not
address
additional
complaints
by
Plaintiff
of
discrimination and retaliation after her non-selection for the
position. The pertinent portion of the EEOC decision states:
2

Also on appeal, Complainant attempts to raise new claims
of reprisal. Specifically, Complainant alleges that as
a result of filing the instant EEO complaint, she has
received
poor
performance
evaluations
and
been
threatened with early retirement if she continues to
pursue her EEO complaint. Under Commission policy, a
complainant
is
protected
from
any
retaliatory
discrimination that is reasonably likely to deter . . .
complainant or others from engaging in protected
activity.” Maclin v. United States Postal Serv., EEOC
Appeal No. 0120070788 (Mar. 29, 2007)[.] Additionally,
agencies have a continuing duty to promote the full
realization of equal employment opportunity in its
policies and practices.
See 29 C.F.R. § 1614.101;
Binseel v. Dep’t of the Army, EEOC Request No. 05970584
(Oct. 8, 1998)[.] However, Complainant’s reprisal claim
is not at issue in the complaint before us, so it will
not be adjudicated in this decision.
If she has not
done so already, Complainant may raise h[er] new claim
of reprisal in a separate complaint by contacting an EEO
Counselor pursuant to 29 C.F.R. § 1614.105.
See Defendant’s Motion, p. 7 (Ex. 3). As noted by the EEOC in its
decision, Plaintiff was required to file another complaint
regarding conduct by Defendant that occurred after she filed her
initial complaint concerning her non-selection for the Management
Analyst position.
See Martinez v. Potter, 347 F.3d 1208, 1210
(10th Cir. 2003) (“[E]ach discrete incident of [discriminatory or
retaliatory] treatment constitutes its own ‘unlawful employment
5

Under Rule 56(c) of the Federal Rules of Civil Procedure,
summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment
as a matter of law.”

Universal Money Centers v. A.T. & T., 22

F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052 (1994).
The moving party bears the initial burden of showing that there is
an absence of any issues of material fact.
Catrett, 477 U.S. 317, 322 (1986).
fact

exists

when

“there

is

Celotex Corp. v.

A genuine issue of material

sufficient

evidence

favoring

the

nonmoving party for a jury to return a verdict for that party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

In

determining whether a genuine issue of a material fact exists, the
evidence is to be taken in the light most favorable to the

practice’ for which administrative remedies must be exhausted.”).
In its Answer to Plaintiff’s Third Amended Complaint (Docket
Entry # 90), Defendant properly raised as an affirmative defense
Plaintiff’s failure to exhaust her claims in the administrative
process.
See Lincoln v. BNSF Railway Co., 900 F.3d 1166, 1185
(10th Cir. 2018) (“[A] plaintiff’s failure to file an EEOC charge
regarding a discrete employment incident merely permits the
employer to raise an affirmative defense of failure to exhaust but
does not bar a federal court from assuming jurisdiction over a
claim.”).
Thus, because Plaintiff has failed to exhaust her
administrative remedies with regard to her allegations of
discrimination and retaliation during 2012 and 2013, the Court
will not consider the allegations further.
6

nonmoving party.
(1970).
party

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157

Once the moving party has met its burden, the opposing
must

come

forward

with

specific

evidence,

not

mere

allegations or denials of the pleadings, which demonstrates that
there is a genuine issue for trial.

Applied Genetics v. First

Affiliated Securities, Inc., 912 F.2d 1238, 1241 (10th Cir. 1990);
Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).
The Court will not consider statements of fact, or rebuttals
thereto, which are not material or are not supported by competent
evidence.

Fed. R. Civ. P. 56(c)(1)(A), 56(e)(2), 56(e)(3).

Only

admissible evidence may be considered when ruling on a motion for
summary judgment.

Jaramillo v. Colorado Judicial Dep’t, 427 F.3d

1303, 1314 (10th Cir. 2005) (citation omitted) (holding that
hearsay evidence is not acceptable in opposing a summary judgment
motion); World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467,
1474 (10th Cir. 1985).

Affidavits must be based on personal

knowledge and must set forth facts that would be admissible
evidence at trial.

Murray v. City of Sapulpa, 45 F.3d 1417, 1422

(10th Cir. 1995)(quotations and citation omitted).
and self-serving affidavits are not sufficient.”

“Conclusory

Id.

To establish a case of intentional discrimination, Plaintiff
has two options – she may satisfy her burden of proof by offering
direct evidence of discriminatory intent or she may demonstrate
such intent indirectly by following the burden-shifting framework
7

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Thomas v. Denny’s, Inc., 111 F.3d 1506, 1509 (10th Cir. 1997)
(race); Jones v. Oklahoma City Pub. Sch., 617 F.3d 1273, 1277-79
(10th Cir. 2010) (age).
Based upon the briefing, the parties agree that Plaintiff’s
claims of race and age discrimination should be analyzed under the
burden-shifting framework of McDonnell Douglas, as there is no
direct evidence of discrimination.
plaintiff

must

first

Under McDonnell Douglas, a

demonstrate

a

prima

facie

discrimination by a preponderance of the evidence.
Douglas, 411 U.S. at 802.

case

of

McDonnell

The standard for establishing a prima

facie case is not an onerous burden for a plaintiff.

Id. at 802,

n.13; see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253-54 (1981).
Once a plaintiff establishes a prima facie case, the burden
of

production

then

shifts

to

the

defendant

reason

for

to

its

articulate

conduct

a

legitimate,

nondiscriminatory

against

plaintiff.

At this stage, the defendant need only “explain its

actions against the plaintiff in terms that are not facially
prohibited by Title VII [or the ADEA].”

EEOC v. Flasher Co., Inc.,

986 F.2d 1312, 1317 (10th Cir. 1992).

If a defendant meets its

burden, then the plaintiff must demonstrate by a preponderance of
the

evidence

pretextual.

that

the

reason

proffered

by

the

McDonnell Douglas, 411 U.S. at 803.
8

defendant

is

A plaintiff may

show

that

a

defendant’s

proffered

reasons

are

pretextual

by

demonstrating that they are “‘so incoherent, weak, inconsistent,
or contradictory that a rational factfinder could conclude [they
are] unworthy of belief.’”

Conroy v. Vilsack, 707 F.3d 1163, 1172

(10th Cir. 2013), quoting EEOC v. C.R. England, Inc., 644 F.3d
1028, 1038-39 (10th Cir. 2011) (alteration in original).3
To establish a prima facie case of race discrimination under
Title VII for failure to promote, a plaintiff must establish that:
“(1) she was a member of a protected class; (2) she applied for
and was qualified for the position; (3) despite being qualified
she was rejected; and (4) after she was rejected, the position was
filled.”

Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir. 2003),

citing Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220,
1226 (10th Cir. 2000).

To establish a prima facie case of age

discrimination under the ADEA for failure to promote, a plaintiff
must establish “that [s]he (1) was within the protected age group
at the time of the failure to promote; (2) was qualified for
promotion; (3) was not promoted; and (4) was passed over for an
available promotion in favor of someone younger.”

Furr v. AT & T

Techs, Inc., 824 F.2d 1537, 1542 (10th Cir. 1987).

Defendant

seemingly does not dispute that Plaintiff has stated a prima facie

3
Even though
defendant, the ultimate
to proffer evidence
discriminatory conduct.

the burdens shift between a plaintiff and a
burden of persuasion remains with a plaintiff
that the defendant engaged in prohibited
Texas Dep’t of Cmty. Affairs, 450 U.S. at 253.

9

case

of

discrimination

on

her

Title

VII

or

ADEA

claims,

as

Defendant’s arguments center on why Plaintiff has failed to show
pretext for discrimination.
With the initial burden satisfied, Defendant is required to
provide a legitimate, nondiscriminatory reason for failing to
promote Plaintiff.

Defendant states that Plaintiff was not hired

for the Management Analyst position, because she was not the best
qualified applicant.
because

she

had

Jeneal Dotte was hired for the position

experience

in

all

the

required

areas

of

responsibility, she had superior leadership skills, and she was
expected

to

be

more

independent

in

carrying

out

the

job’s

responsibilities.
Plaintiff concedes that Defendant has rebutted her prima
facie case by articulating a legitimate, nondiscriminatory reason
for failing to promote her.

However, like Defendant, Plaintiff

focuses her argument on the third step of the McDonnell Douglas
framework.

In an attempt to show that Defendant’s proffered

reasons for failing to promote her were a pretext for race and age
discrimination,

Plaintiff

alleges

the

following

demonstrate

pretext: (1) Defendant’s history of denying Plaintiff promotions
and of keeping her in the mailroom; (2) Defendant’s prior history
of

discrimination

with

other

African-American

employees;

(3)

inconsistencies regarding who made the hiring decision for the
Management Analyst position and influences on the decision; and
10

(4) Plaintiff was the best qualified candidate for the Management
Analyst

position.

The

Court

addresses

each

of

Plaintiff’s

contentions below.
Plaintiff first asks the Court to draw an inference of pretext
based upon Defendant’s history of denying her promotions and prior
discrimination. Relying upon her affidavit and certain past emails
suggesting what duties she performed over the years, Plaintiff
maintains she has been subject to discrimination since she began
her employment at the ammunition plant 33 years ago.

She states

she was hired by Defendant only after filing an EEOC complaint.
She also states that she was hired into a mailroom position in
1995 and has been kept segregated in that position from the white
employees, while being given other duties in addition to her
mailroom duties. Plaintiff applied for the Management Analyst
position in 2000.

Even though she was not selected, she contends

she worked closely with Alveda Blankenship, a white female, who
was selected for the position.

Plaintiff asserts she was more

qualified for the position than Ms. Blankenship and trained her to
perform most of the duties for the position.

Plaintiff asserts

that during her work with Ms. Blankenship, she often performed the
duties of the Management Analyst position.

She asserts that when

Ms. Blankenship began thinking about retirement, Defendant began
adding new employees to ensure she remained in the mailroom.

11

Ms.

Blankenship eventually retired and that is when the position again
became available in the Spring of 2010.
Plaintiff’s allegations in her affidavit serve as nothing
more than her subjective belief that she was discriminated against
by Defendant based upon her race and age prior to applying for the
Management Analyst position.

This is not evidence upon which the

Court can draw an inference that Defendant’s reasons for hiring
Ms. Dotte for the 2010 position was pretext for race or age
discrimination against Plaintiff.

See Aramburu v. Boeing, Co.,

112 F.3d 1398, 1408 n.7 (10th Cir. 1997) (noting “subjective belief
of

discrimination

is

not

sufficient

to

preclude

summary

judgment”), citing Panis v. Mission Hills Bank, N.A., 60 F.3d 1486,
1491 (10th Cir. 1995) (stating an employee’s mere conjecture that
her employer’s explanation for an adverse employment action is
pretext for intentional discrimination is insufficient to preclude
summary judgment), cert. denied, 516 U.S. 1160 (1996).

Moreover,

Plaintiff presents no evidence that this prior alleged conduct was
related to or carried out by the same supervisors who denied her
the 2010 Management Analyst position.

See Jackson v. NT Media,

LLC, 233 Fed. Appx. 770, 782 (10th Cir. 2006) (“Comments or actions
unrelated to the challenged action ‘are insufficient to show a
discriminatory animus[.]’”), quoting Minshall v. McGraw Hill Broad
Co., 323 F.3d 1273, 1281 (10th Cir. 2003); see also Little v.
Illinois Dept. of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004)
12

(“The analysis of pretext focuses only on what the decisionmaker,
and not anyone else, sincerely believed.”).
Plaintiff also alleges Ms. Dannelley had prior conflicts
with

at

Plaintiff

least

two

believes

allegations

are

other
was

based

individuals told her.

African-American

based
upon

upon

what

their

she

employees,

race.

remembers

which

Plaintiff’s
and

what

the

This evidence is improper to establish

pretext, as it establishes only a subjective belief by Plaintiff,
or perhaps others, that Ms. Dannelley discriminated against them
based upon their race.

See Aramburu, 112 F.3d at 1408 n.7.

Moreover, Plaintiff’s evidence is based upon hearsay and is not
competent evidence for opposing summary judgment.

See Jaramillo,

427 F.3d at 1314 (holding that hearsay evidence is not acceptable
in opposing a summary judgment motion).
Plaintiff

next

attempts

to

establish

pretext

based

upon

inconsistencies in exactly who made the decision that Ms. Dotte
should be hired for the position and influences on the decision.
She cites to testimony from Mr. Clemons, wherein she asserts he
testified that he would have recommended Plaintiff for the position
and that Ms. Dannelley made the decision to hire Ms. Dotte.
Although Mr. Clemons testified that at the time, he would have
recommended Plaintiff for the position, when asked if Plaintiff
was the “better choice” for the position, Mr. Clemons testified
“not necessarily.”

Mr. Clemons testified he could not remember
13

whether Ms. Dannelley sought his opinion in the selection of Ms.
Dotte.

However, the undisputed affidavit of Ms. Dannelley stated

that both she and Mr. Clemons made the decision to hire Ms. Dotte
for the position. The Court views any inconsistencies in this
regard as minor and insufficient to demonstrate a pretext for race
or age discrimination against Plaintiff.
Plaintiff further argues that Ms. Blankenship influenced the
hiring process by speaking with Ms. Dannelley and Mr. Clemons about
the position. However, Plaintiff’s argument is undercut by her own
testimony that she knows only that Ms. Blankenship spoke to Ms.
Dannelley and Mr. Clemons regarding the qualifications of Ms. Dotte
and one other applicant.

She does not have evidence that Ms.

Blankenship somehow influenced the hiring decision.

In fact,

Plaintiff testified that prior to her application for the position,
she received top job performance ratings from Ms. Dannelley and
Mr. Clemons, she had never had any conflicts with them, and she
believed they had a good working relationship.
Finally, Plaintiff asserts Defendant’s decision to hire Ms.
Dotte was pretext for race and age discrimination because she was
the best qualified person for the job.

As part of this argument,

Plaintiff asserts several instances that purportedly show she was
most qualified for the position:

(1) she had more experience than

Ms. Dotte and post-graduate work Ms. Dotte did not possess; (2)
the job description did not require leadership experience; (3) she
14

had better attendance than Ms. Dotte; and (4) Defendant rehired
Ms. Blankenship to train Ms. Dotte to perform the job.
Although a court “‘will draw an inference of pretext where
the facts assure [it] that the plaintiff is better qualified than
the other candidates for the position[,]’” see Conroy, 707 F.3d at
1172, quoting Santana v. City and County of Denver, 488 F.3d 1260,
1267 (10th Cir. 2003), “[it] will not draw that inference based
upon ‘minor differences between plaintiff’s qualifications and
those

of

successful

applicants’;

overwhelming merit disparity.’”

rather,

there

must

be

‘an

Id., quoting Bullington v. United

Air Lines, Inc., 186 F.3d 1301, 1319 (10th Cir. 1999), overruled
on other grounds by National R.R. Passenger Corp. v. Morgan, 536
U.S. 101 (2002).

A court’s “‘role is to prevent unlawful hiring

practices, not to act as a super personnel department that second
guesses employers’ business judgments.’”
quoting

Simms

v.

Oklahoma

ex

rel.

Jones, 349 F.3d at 1267,

Dep’t

of

Mental

Health

&

Substance Abuse Servs., 165 F.3d 1321, 1329 (10th Cir. 1999).
Defendant does not dispute Plaintiff’s experience or that she
possessed post-graduate work not possessed by Ms. Dotte. Defendant
admits Plaintiff was qualified for the position.

However, the

evidence shows Ms. Dotte had the necessary experience in all the
required areas of responsibility, and that although she did not
possess post-graduate course work, the position did not require
it.

Moreover, Defendant has stated that its primary reason for
15

hiring

Ms.

Dotte

was

because

she

not

only

had

the

required

experience, but she had superior leadership skills and was expected
to be more independent in carrying out the job’s responsibilities.
Defendant could consider her leadership abilities in its selection
decision.

See Martinez v. United States Dep’t of Energy, 170 Fed.

Appx. 517, 519 (10th Cir. 2006) (finding leadership abilities,
along with other skills and abilities, could serve as a legitimate,
non-discriminatory reason for hiring a candidate).
Moreover, Plaintiff’s contentions that she was more qualified
for the position because she had better attendance than Ms. Dotte
and because Ms. Blankenship came out of retirement to train Ms.
Dotte

(presumably,

training

Plaintiff

would

not

have

been

necessary if she had been hired) do not allow for the Court to
draw an inference of pretext.

The emails attached by Plaintiff

regarding Ms. Dotte’s attendance are from after Defendant’s hiring
decision.

Plaintiff has provided no evidence Ms. Dotte had

attendance issues prior to her selection for the position or, even
if she did, Defendant was aware of it.

Moreover, the evidence

shows Ms. Blankenship was rehired to help with transitions and
staffing issues caused by the deployment of one of Defendant’s
employees.

She was hired on a temporary three-month basis because

she had previously held the Management Analyst position.
The

Plaintiff’s

evidence

does

not

demonstrate

“an

overwhelming merit disparity” between Plaintiff’s and Ms. Dotte’s
16

qualifications
Plaintiff

for

has

the

failed

Management
to

Analyst

establish

position.

pretext

based

Thus,
on

her

qualifications for the position.
Plaintiff

has

failed

to

demonstrate

the

requirements

necessary to establish that Defendant’s decision to hire Ms. Dotte
was a pretext for race and age discrimination against Plaintiff.
Plaintiff’s evidence is not “sufficient to raise a genuine doubt
about Defendant’s motive.”

EEOC v. Horizon/CMS Healthcare Corp.,

220 F.3d 1184, 1200 (10th Cir. 2000).

Defendant is therefore

entitled to summary judgment on Plaintiff’s Title VII and ADEA
claims.
IT IS THEREFORE ORDERED that Defendant’s Motion for Summary
Judgment and Memorandum in Support Thereof (Docket Entry #89) is
hereby

GRANTED.

Judgment

will

be

entered

for

Defendant

accordingly.
IT IS SO ORDERED this 30th day of September, 2019.

_____________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

17