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Hobson v. Carter

United States District Court, M.D. Tennessee, Nashville Division

December 14, 2016

FAYE R. HOBSON, Plaintiff,
v.
ASHTON CARTER, Secretary of Defense, Defendant.

          THE HONORABLE ALETA TRAUGER JUDGE.

          REPORT AND RECOMMENDATION

          ALISTAIR E. NEWBERN United States Magistrate Judge.

         By Order entered August 5, 2014, the District Court referred this action to the Magistrate Judge under 28 U.S.C. § 636(b)(1) for report and recommendation on all dispositive motions. (Doc. No. 3.) Pending before the Court is Defendant Ashton Carter's[1] Motion for Summary Judgment (Doc. No. 95.) For the reasons stated below, the undersigned recommends that Defendant's Motion for Summary Judgment be GRANTED.

         I. Factual Background

         Plaintiff Faye Hobson is a teacher who began working in schools[2] run by the Department of Defense (Department) in August 2002. (Doc. No. 103, PageID# 833.) She has repeatedly sought employment at Department schools located in Fort Campbell, Kentucky, with no success. (Id. at 833-34; Doc. No. 16-4, PageID# 74, 81, 85.) Motivated in part by her unsuccessful applications for employment at Fort Campbell schools, Hobson has filed numerous complaints against the Department since 2005, including one informal and five formal Equal Employment Opportunity (EEO) complaints filed with the Diversity Management and Equal Opportunity Office of the Department of Defense Education Activity (DoDEA) and a civil lawsuit that was settled in 2012. (Doc. No. 103, PageID# 834; Doc. No. 16-6, PageID# 116; Doc. No. 16-12, PageID# 133.) She has also spoken about the Department through speech she characterizes as “whistleblower disclosure, letters to Congress . . . letters to [the] Office of Special Counsel [and] serving as a witness for other EEO complainants.” (Doc. No. 103, PageID# 834.)

         On June 28, 2013, Fort Campbell High School announced an opening for a Language Arts Reading Specialist (LARS) position under Request for Personnel Action (RPA) number 13Jun7XHEKY012377. (Doc. No. 103-1, PageID# 892; Doc. No. 16-5, PageID# 97.) Hobson was referred for consideration for this position through the Employment Application System (EAS), a tool used to fill teacher vacancies in stateside Department of Defense schools. (Doc. No. 103-1, PageID# 892; Doc. No. 65, PageID# 97; Doc. No. 97 PageID# 774.) EAS does not advertise and accept applications for specific vacancies; rather, candidates answer a series of questions regarding their qualifications and identify specific teaching categories and geographic locations for which they wish to be considered. (Doc. No. 97, PageID# 774.) Candidates are then referred through EAS for consideration when positions matching their qualifications and teaching and geographic preferences arise. (Id. at PageID# 775.)

         After being referred for consideration, Hobson interviewed for the LARS position with Fort Campbell High School Principal Mohan Vaswani, Assistant Principal Demetrius Thomas, and English Department Chair Wendy Thomas. (Doc. No. 103-1, PageID# 898.) Before completing the last interviews for the LARS position, Vaswani emailed Leslie McNair, the Human Resources Specialist who prepared the referral list for the position, to inform her that “[he has] now discovered that the person has to have [a] Secondary English [certification] for the position we have available.” (Doc. No. 103-1, PageID# 922.) Vaswani noted that some of the candidates he interviewed did not have this certification. (Id.) McNair responded that, if the vacant position was a Secondary English position and not a LARS position, Vaswani would need to return the LARS referral list with a notation that none of the candidates was selected. (Id.) McNair would then cancel the LARS RPA and the school would have to submit a new request for candidates to fill a Secondary English position. (Id.)

         Following this instruction, Fort Campbell High School returned the referral list for the LARS position noting that no candidate had been selected and submitted a request for a Secondary English position, RPA number 13Jun7XHEKY015490. (Doc. No. 103-1, PageID# 925; Doc. No. 16-8; Doc. No. 16-5, PageID# 101.) Hobson was again referred as a candidate for this Secondary English position. (Doc. No. 96-1, PageID# 744.) She was personally invited to interview by Assistant Principal Thomas, who contacted her by telephone and by email regarding the reposted position. (Id. at PageID# 742.) Hobson interviewed for the position with Assistant Principal Thomas and Wendy Thomas. (Doc. No. 103-1, PageID# 898.) Ultimately, Assistant Principal Thomas selected another candidate, Dr. Bonnie Cameron, to fill the Secondary English position. (Doc. No. 96-1, PageID# 746.)

         Shortly thereafter, Fort Campbell High School submitted a third RPA, number 13Jul7XHEKY019211, for an English with Advanced Placement English Literature & Composition opening (AP English position). (Doc. No. 96-1, PageID# 738.) Hobson, who did not have AP English certification, was not referred for this position. (Doc. No. 96-1, PageID# 738- 41, 756, 758; Doc. No. 100, PageID# 795.) In the end, Fort Campbell High School did not fill the AP English position. (Doc. No. 103-1, PageID# 894; Doc. No. 16-2, PageID# 137.)

         On September 15, 2013, Hobson filed a Complaint of Discrimination in the Federal Government (EEO Complaint) with the Department. (Doc. No. 103-1, PageID# 910-12.) In her complaint, Hobson questioned several aspects of her interactions with Fort Campbell High School. (Id. at PageID# 911-12.) She noted the cancellation of the LARS position and relisting of the Secondary English position, which she termed a “red flag, ” and alleged that other candidates received different information about the Secondary English position than she did. (Id. at PageID# 911.) As relief for her complaint, Hobson requested, among other things, the candidate referral lists for the LARS and AP English positions and an explanation of why the LARS posting was cancelled. (Id. at PageID# 912.)

         The Investigations and Resolutions Directorate of the Defense Civilian Personnel Advisory Service investigated Hobson's complaint and issued a report[3] dated March 7, 2014. (Doc. No. 103-1, PageID# 917; Doc. No. 16-6.) The Report of Investigation notes that Hobson “discusses three different positions throughout her testimony, which include [the LARS position, the Secondary English position, and the AP English position].” (Doc. No. 16-6, PageID# 115.) However, the Report states that the AP English position was the only position “accepted as a ‘non-referral' and is the only position accepted for investigation.” (Id. at PageID# 115 n.2.)

         The Department's Final Agency Decision, based on the Report of Investigation, again only considers Hobson's non-selection for the AP English position. (Doc. No. 103-1, PageID# 918; Doc. No. 16-12, PageID# 133, 135.) It states that “[t]he two officials most intimately involved in the hiring process for teachers” at Fort Campbell High School “were aware of [Hobson's] race, sex, age, and prior EEO activity due to [her] filing of an earlier complaint against FCHS.” (Doc. No. 16-12, PageID# 137.) It further states that Hobson acknowledged she did not have AP certification but also indicates that the record showed at least one candidate without AP certification was referred for the position. (Id. at PageID# 137-38.) It states: “[T]he record shows that one candidate who was on the list who lacked AP qualifications was told that the requirements for an AP position were strict, but that waiver of the AP requirement might be possible.” (Id.) However, it also notes that Hobson “failed to produce evidence, other than her speculation, to support her contention that an improper employer motive created this situation.” (Id. at PageID# 137.) Finally, it states that, after no candidate was hired from the original AP English referral list, a second list of candidates for the position was created without the AP certification requirement. (Id. at PageID# 137 n.2.) Hobson was included as a candidate on that list but not selected for the position. (Id.) On these facts, the Department concluded that Hobson was not unlawfully discriminated against “based on her race, sex, age, or in reprisal for prior EEO activity.” (Id. at PageID# 138.)

         Hobson then filed this civil action. (Doc. No. 1.) Hobson's Complaint alleges that she “is a black female who is engaged in protected activity by filing a Civil Law Suit settled on April 20, 2012, and several Formal EEO Complaints;” that she has “applied for more than 22 positions at Fort Campbell High School with a non-selection;” and that this is discrimination in violation of Title VII. (Doc. No. 1, PageID# 2-4.) In response to Defendant's earlier motion (Doc. No. 14), the District Court granted summary judgment to Defendant as to Hobson's claims of discrimination with regard to all non-selections except Hobson's “claims of discrimination with regard to her non-selection for the LARS position and the AP position.” (Doc. No. 31, PageID# 299.)

         On September 29, 2016, Defendant filed the instant Motion for Summary Judgment, accompanied by a Memorandum of Support; the Declaration of Gordon Harmon, Supervisory Human Resources Specialist and Chief of the Educator Staffing Branch for the Department of Defense Domestic Dependent Elementary and Secondary Schools; and a Statement of Material Undisputed Facts. (Doc. Nos. 95-98.) On October 4, 2016, Hobson filed an Opposition to Defendants' Motion for Summary Judgment and Motion to Strike and Memorandum in support thereof; a Rebuttal to the Declaration of Gordon Harmon; and an Opposition to Defendants' Statement of Material Undisputed Facts. (Doc. Nos. 100-103.) On October 17, 2016, Carter filed a Reply and a Reply to Hobson's Response to his Statement of Undisputed Material Facts. (Doc. Nos. 108-10.) On October 26, 2016, Hobson filed three sur-replies. (Doc. Nos. 111-13.)

         II. ...


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