McGrady v. Esper

MISTY D. MCGRADY, Plaintiff, v. MARK ESPER, Secretary of the Army, Defendant.

NO. 3:17-cv-00390

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

September 11, 2019

JUDGE CAMPBELL

MAGISTRATE JUDGE BROWN

MEMORANDUM

Pending before the Court is Defendant's Motion for Summary Judgment (Doc. No. 94). Plaintiff filed a Response (Doc. No. 99) and Defendant filed a Reply (Doc. No. 107). Defendant filed a Statement of Undisputed Facts in support of the motion (Doc. No. 97) and Plaintiff responded (Doc. No. 102). Plaintiff filed a Statement of Additional Undisputed Facts (Doc. No. 103) and Defendant responded (Doc. No. 108).

For the reasons stated below, Defendant's Motion for Summary Judgment is DENIED.

I. FACTUAL BACKGROUND

Plaintiff complains Defendant's decision not to hire her for a position for which she was qualified, and to hire a younger candidate instead, was based on age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §633a. The following facts relevant to her claim are presented in the light most favorable to Plaintiff.

Plaintiff is a former dual status military technician with the National Guard. Dual status technicians must be a member of the National Guard. See 32 U.S.C. § 709(b). If a dual-status technician is separated from the National Guard, the technician must also be "promptly separated from military technician (dual status) employment. Id. A non-dual status technician, on the other hand, is a civilian employee. 10 U.S.C. § 10217. Plaintiff was attempting to move from a dual status position to a non-dual status position, which would have allowed her to remain in her job after ending her service with the National Guard.

Plaintiff began her employment with the National Guard in 2006 as a dual-status GS-11 Account IR Evaluator (later referred to as an "auditor") with the Internal Review section of the U.S. Property and Fiscal Office (USPFO). (Doc. No. 102, ¶¶ 8-11.) Because Plaintiff was a dual status employee, she was required to be a member of the National Guard to retain her position as auditor. (Id. ¶ 12.) Plaintiff worked in Internal Review from April 2006 until February 2010. (Id., ¶ 17.) While working at Internal Review, Plaintiff served as temporary lead auditor (a GS-12 position) from February 2009 to February 2010. In February 2010, Plaintiff applied for a dual-status position as staff accountant in the Comptroller's Division and was transferred to that division in March 2010. (Id. ¶¶ 38, 41.)

Plaintiff had been trying to get a non-dual-status position since she started working for Internal Review in 2006, so that she could retire at the end of her enlistment and keep her job. (Id., ¶ 54, 56.) Plaintiff told Col. William Hardin, head of the USPFO, that she "needed him to go to bat for her or she would have to find another agency to work for when her contract runs out in October 2011. (Id., ¶ 57 (citing McGrady Dep., Doc. No. 95-1 at 47-8).) In January 2011, Plaintiff applied for a non-dual status auditor position at Internal Review (her former job, except as a non-dual status position), but was not selected. (Doc. No. 102, ¶ 60.) Plaintiff retired from the National Guard and resigned from her dual-status position as a staff accountant in October 2011. (Id., ¶¶ 43, 46.)

Plaintiff alleges Maj. Hess showed favoritism to younger employees.¹ Specifically, Maj. Hess hired a young officer, Dannie Frederick, to work in Internal Review. Plaintiff alleges Maj. Hess agreed to take on 1st Lt. (now Captain) Janna Moore, as a management analyst "to groom some folks to be auditors." (Hess. Dep., Doc. No. 95-2 at 15-17.) Plaintiff claims Moore received preferential treatment and "advanced rapidly." (McGrady Aff., Doc. No. 101, ¶ 5.) According to Plaintiff, Moore studied for her accounting classes while "on the clock," and received annual performance reviews (Plaintiff was not reviewed annually). (Doc. No. 101, ¶¶ 16, 17.) Plaintiff also claims Maj. Hess, while assigned to a different division than Internal Review, lobbied for Moore to receive a promotion to a GS-11 auditor position. (McGrady Aff., Doc. No. 101, ¶ 20.) Ultimately, the GS-11 auditor position was given to different employee, who was in his 50s, but Moore was promoted two months later when another GS-11 position became available. (Doc. No. 108, ¶ 7.)

In January 2011, Plaintiff applied for a non-dual status auditor position that was open to three categories of applicants (referred to as "areas of consideration"): (1) current non-dual status employees; (2) current dual-status employees; and (3) open to the public. (Doc. No. 102, ¶ 71.) The applicants are presented to the selecting official, one category at a time. (Id.) If the supervisor decided not to offer the position to the applicant(s) in the first category, he or she could request candidates under the second category; and if none in the second category were selected, he could request the candidates in the third category. (Id., ¶ 74.) At each stage, the supervisor received the names of the candidates in the new category together with thecandidates he or she had previously interviewed, so that at stage two the supervisor could review candidates from stages one and two, and at stage three he or she could review candidates from categories one, two, and three. (Celatka Dep., Doc. No. 95-6 at 19-20.)

Three candidates met the minimum qualification for the position - by coincidence, one candidate in each applicant category. (Id., ¶ 73.) Plaintiff, as a current dual-status employee, was interviewed by Maj. Hess and Lt. Col. Elliot Pacetti as a part of category two. Maj. Hess, who had previously been Plaintiff's supervisor, was familiar with her qualifications and said he did not want to discuss them during the interview. (Doc. No. 102, ¶ 82; Doc. No. 108, ¶ 14). Instead, Maj. Hess presented Plaintiff with a series of scenario-based questions. (Id.) Following the interview, Lt. Col. Pacetti voiced concern about Plaintiff's interpersonal skills and "some of the attitude she was displaying during the interview." (Hess Dep., Doc. No. 95-2 at 34.) Maj. Hess said he did not have the same concern about Plaintiff's attitude during the interview, but knew Plaintiff had a history of problems with interpersonal skills. (Id.) Specifically, Maj. Hess recalled that clients had complained of her attitude toward them, but said that he had not personally witnessed her having difficulties interacting with others. (Id. at 35.)

After Plaintiff's interview, Maj. Hess decided to move on to the third category of applicants, those from the general public, in order to see what other qualified candidates were available. (Doc. No. 102, ¶ 86.) During stage three, Plaintiff was offered the opportunity to re-interview, but declined to do so. (Doc. No. 108, ¶ 21.)

Ultimately, Ms. Miller, the candidate interviewed at the third stage, was selected for the non-dual-status auditor position. Ms. Miller was 32 years old at the time. (Doc. No. 102, ¶ 94.) Plaintiff was 50 years old. (Doc. No 102, ¶ 61.) Maj. Hess stated that Plaintiff was qualified for the position and would have been his second choice. (Hess Decl., Doc. No. 95-2 at 55.)Maj. Hess explained that he chose Ms. Miller for the position because she "gave us a much more qualified individual and gave a much better interview, and [he] thought that she would be a good fit for the organization." (Hess Dep., Doc. No. 95-2 at 39.) Additionally, Maj. Hess said Ms. Miller's interview was one of the better interviews he has had: "I had a highly skilled individual that knew what she was talking about. Very personable, very professional. It just made it much more enjoyable for both sides." (Id. at 38.)

Explaining why Ms. Miller was the "absolute best qualified and the most desirable candidate," Maj. Hess stated:

[Ms. Miller] had documented supervisory experience, and, per her reference, was a very capable leader. Also, while Ms. McGrady had relevant auditing experience, Ms. Miller had a greater depth of professional auditing experience as evidenced by her resume. For example, [Ms. Miller] had worked for a large corporate structure which is most like the Tennessee National Guard. Both experience and leadership qualities are very desirable attributes and exactly what I need in my section. Additionally, the selectee came across as a more effective communicator, one who would be very approachable by our client base. Particularly, in the interview she appeared to communicate in a more professional and yet amicable manner than Ms. McGrady. A diplomatic and effective communication style is important in the identification and resolution of auditing problems with a clientele that includes high-ranking military commanders and upper level civilian managers who hold highly visible positions and whose programs are susceptible to a high levels [sic] scrutiny from public and governmental oversight.

(Hess Decl., Doc. No. 95-2 at 54-55.)

After Plaintiff learned she had not been selected, she requested a meeting with Col. Bates and Col. Andy Hardin. (McGrady Aff., Doc. No. 101, ¶ 34.) Maj. Hess had discussed his reasons for selecting Ms. Miller for the position with Col. Bates, and Col. Bates signed off on the selection. (Bates Depo., Doc. No. 95-2 at 13, 15.) Plaintiff asked the colonels how they could justify the expense of training someone when Plaintiff already had the requisite training.(McGrady Depo., Doc. No. 95-1 at 80.) Plaintiff claims Col. Bates said, "Well, when you consider the longevity of the selectee, it's not that big of a deal." (Id.)

On May 24, 2011, Plaintiff timely filed a formal administrative complaint of discrimination alleging that her non-selection was the result of unlawful discrimination based on age. (Am. Compl., Doc. No. 26, ¶ 78.) After a lengthy dispute within the National Guard as to whether Plaintiff's complaint was civilian or military, Plaintiff filed this action. The Court granted a motion to...