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LUMPKIN v. BROWN

September 13, 1995

LEDESTER LUMPKIN, et al., Plaintiffs,
v.
JESSE BROWN, Secretary of Veterans Affairs, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

 Ledester Lumpkin ("Lumpkin"), Lorna Barker ("Barker"), Janet Blazek ("Blazek"), Patricia Brenner ("Brenner"), Ruth Bush ("Bush"), Joane Hawkins ("Hawkins"), Varnell Owens ("Owens") and Alice Sedlak ("Sedlak") charge Secretary of Veterans Affairs Jesse Brown ("Secretary")--purely in his official capacity, not personally--with age discrimination in the federal workplace in violation of the Age Discrimination in Employment Act ("ADEA," 29 U.S.C. § 633a). *fn1" Secretary has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, both sides have complied with this District Court's General Rule ("GR") 12(m) and 12(n) and the motion is fully briefed and ready for decision. For the reasons stated in this memorandum opinion and order, Secretary's motion is denied except as to Barker, as to whom Secretary prevails.

 Summary Judgment Standards

 Familiar Rule 56 principles impose on movant Secretary the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court is "not required to draw every conceivable inference from the record--only those inferences that are reasonable"--in the light most favorable to nonmovant plaintiffs ( Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991) and cases cited there). While "this general standard is applied with added rigor in employment discrimination cases, where intent is inevitably the central issue" ( McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 370-71 (7th Cir. 1992); accord, 10A Charles Wright, Arthur Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2732.2, at 340 and cases cited at 350-54 n.11 (2d ed. 1983) and 124-25 n.11 (1995 pocket part)), that does not negate the potential for summary judgment in cases where a movant plainly satisfies the Rule 56 standards ( Washington v. Lake County, 969 F.2d 250, 254 (7th Cir. 1992)). In those terms summary judgment for Secretary is appropriate if the record reveals that plaintiffs would not "have had a fair chance of obtaining a verdict" based on their having been treated in a statutorily prohibited discriminatory fashion ( Kirk v. Federal Property Management Corp., 22 F.3d 135, 138 (7th Cir. 1994)).

 This District Court designed GR 12 to facilitate the resolution of Rule 56 motions by highlighting the existence or nonexistence of factual disputes. GR 12(m) requires each Rule 56 movant to submit a statement of assertedly uncontested facts, with citations to the record in support of each of those facts. Then GR 12(n) requires each nonmoving party to respond point by point, with citations to the record in support of (1) any claimed disputes as to the movant's version of the facts and (2) any additional facts that the nonmovant chooses to assert.

 Facts2

 Department of Veterans Affairs ("Department") provides over 172 hospitals and outpatient clinics nationwide with medical equipment and supplies through its Hines, Illinois National Acquisition Center ("Center") (Darr Dep. 8; Duvall Dep. 27). About 100 contract specialists bear primary responsibility for negotiating and monitoring the Center's several billion dollars worth of procurement contracts (Duvall Dep. 27, 90-91; Sedlak Dep. Att. 1; Darr Dep. 8-10). Until 1990 contract specialists typically began at the GS-7 level (trainee) and advanced to GS-9 (full performance) and then to GS-11 and GS-12 (complex assignments) by competing for open slots (P. Ex. 20 P4; Cooper Dep. Ex. 4; Bush Dep. Ex. 1 P4; Sedlak Dep. 8).

 On September 12, 1990 Department began requiring field facilities to submit applications for contract specialists GS-5 through GS-12 and all other positions GS-12 and above to the Washington, D.C. Central Office ("Central Office") for approval (D. Ex. 12). For the Center that meant that before it could hire or promote contract specialists it had to secure the approval of Associate Deputy Assistant Secretary Dale Duvall ("Duvall") in the Office of Acquisitions and Materiel Management (Duvall Dep. 18, 31-32). In practice the Center forwarded appropriate materials to Chief of Personnel Staff Gerard Maresca ("Maresca") who recommended to Duvall that the application be rejected or accepted (id.). Included in those materials was the standard federal job application form ("SF-171") (Maresca Dep. 127-28). Among other things the SF-171 called for information relating to an applicant's past employment, education and date of birth (P. Ex. 12).

 From 1990 through 1993 Lumpkin, Barker, Blazek, Brenner, Hawkins, Owens and Sedlak (all then over age 40) competed unsuccessfully for positions in the contract specialist category for which they qualified. In each instance the slot was filled by a younger applicant (Lumpkin Dep. 10-11, 20-22 and Ex. 1 P3; Barker Dep. 10-16; Blazek Dep. 16-19 and Ex. 1 P13; Brenner Dep. 18-19; Hawkins Dep. 9-14, 26-27; Owens Dep. 18-19; Sedlak Dep. 21-22). On May 30, 1991 Barker accepted a promotion to GS-9 at a Department facility in Miami, Florida, and in October 1994 she was promoted to GS-11 (Barker Dep. 7-9 and Ex. 1, at Interrogatory Nos. 2 & 3 (referred to at D. 12(m) P10 but not attached)). Barker put her Illinois residence on the market but failed to find a buyer until early 1995 (Barker Dep. 23-24, 38). She claims to have stood ready to return to Illinois in the event that her promotional prospects at the Center improved (Barker Dep. 23).

 In late 1991 or early 1992 Maresca conducted a review of the Center's personnel practices (including a site visit and an analysis of 20 promotional files (Duvall Dep. 20, 28; Magnuson Dep. 8-9; Maresca Dep. 43-44, 184-85)), from which Maresca concluded that there was a need to "professionalize" the contracting corps (Maresca Dep. 60, 94 and 108)). Apart from several relatively minor recommendations such as more neckties and less nepotism (Maresca Dep. Exs. 3 and 4), Maresca encouraged the Center to take advantage of the federal government's Outstanding Scholars Program ("Program") (Cooper Dep. 17-19; Maresca Dep. 31, 42 and 107-08). Under the Program agencies could bypass usual bureaucratic channels (no written examination, no applications submitted directly to hiring agency) in the initial hiring of college graduates with grade point averages 3.5 and above or class rank within the top 10% (D. Exs. 10 and 11; Prusinski Dep. Ex. 1 P1.A.).

 As indicated in the preceding paragraph, Office of Personnel Management ("OPM") had determined in June 1991 that a college degree was not a requirement of the contract specialist position (Maresca Dep. 25, 104-05; Prusinski Dep. Ex. 1 P3.E.). Indeed, Department itself undertook no formal study to determine whether and to what extent a college degree related to the job performance of contract specialists (Prusinski Dep. Ex. 1 PP3.A. to 3.D.). Before 1992 the percentage of contract specialists with college degrees at the Center was 22 to 23%, less than half of the national average of 47 to 48% for federal agencies such as the Bureau of Indian Affairs, Bureau of Prisons and the like (Maresca Dep. 60-62).

 In spring 1992 Assistant Director Thomas Cooper ("Cooper") communicated with placement offices of various local colleges and universities in an effort to recruit Programees (Lumpkin Int. 6; Sedlak Dep. 12; Owens Dep. 12; Magnuson Dep. 15-16; Cooper Dep. 21-22; Prusinski Dep. Ex. 1 P2.D.). Those efforts yielded eight recent college graduates (all under 25 years of age), one graduate student (age 30), one teacher (age 38) and two student trainees (both under age 25), all drawn from either Northern Illinois University or Wheaton College (Prusinski Dep. Ex. 1 PP2.A. and 2.B.). At that time Lumpkin (age 52) was GS-7, Barker (age 44) was GS-9 (at the Miami facility) Blazek (age 54) was GS-11, Brenner (age 51) was GS-5, Bush (age 58) was GS-11, Hawkins (age 50) was GS-7, Owens (age 52) was GS-11 and Sedlak (age 56) was GS-11 (Lumpkin Aff.; Barker Dep. 6-8; Blazek Aff.; Brenner Dep. 4; Bush Dep. 6 and Aff.; Hawkins Dep. 5, 8; Owens Dep. 5, 9-10; Sedlak Aff.).

 Brenner is the only plaintiff with a college degree (Lumpkin Dep. 5; Hawkins Dep. 5-6; Bush Dep. 5-6; Sedlak Dep. 5; Blazek Dep. 5; Barker Dep. 6; Owens Dep. 5-6; Brenner Dep. 4-5). Although Brenner was not given an opportunity to apply for the Program, she would not have qualified because of her lower grade point average (Brenner Dep. 5 and Ex. 1 P5). *fn3"

 Ten full-time Programees started in summer 1992 at the GS-7 level and were promoted noncompetitively to GS-9 in summer 1993. Then the eight who remained at the Center in summer 1994 were automatically promoted to GS-11 (Prusinski Dep. Ex. 1 P2.C.; Darr Dep. 45-47). Two student Programees who also started in summer 1992 were converted to GS-7 contract specialists in spring 1993 and were promoted to GS-9 one year later (Prusinski Dep. Ex. 1 P2.C.).

 In addition to contract specialists the Center employed a number of support personnel. In June 1992 the Center solicited applications and interviewed candidates for a GS-12 computer programmer. Eventually the application of John Hart ("Hart") was forwarded to the Central Office for approval. Maresca reviewed Hart's file and, after consulting with in-house computer guru Edward Kinney, sent this e-mail message to Duvall on June 17 (Maresca Dep. 116-28; Maresca Dep. Ex. 6A) (emphasis supplied):

 
The [Center] has requested your concurrence in the selection of MR John Hart for a GS-12 Computer Specialist position. Mr. Hart was born 7/29 32 and is currently a GS-11 Management Analyst at the Sierra Army Depot at Herlong CA. He is currently responsible for the Acquisition and Control of ADP equipment used in his organization. Mr Hart has had extensive ADP experience in a variety of computer positions starting in 65. In fact MR HART has had 14 positions in 27 years. Mr Hart first became a GS-12 in 68 and took a downgrade in 82 to a GS-11 and sited Personal Advancement. Mr HArt has no degree ([arrow up] 64hrs) , no training data, no performance evaluation data. I asked [Kinney] to also comment and they question whether the candidate has had oracle experience. They further commented that they would have difficulty making a selection based on the candidates responses to the KSAOs. It should also be noted that only 3 candidates were referred in addition to mr HART. The position was only announced at the GS-11 and GS-12 levels and closed 5/10/92.
 
Based on the above recommend you not concur and request additional justification or reaanounce with a greater effort on personnel part to ...

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