Chapman v. O'Rourke, No. 3:2018cv00014 - Document 47 (S.D. Ga. 2020)
Court Description: ORDER granting 37 Motion for Summary Judgment as to Plaintiff's claims of reprisal, the only remaining claims in this case. Costs are assessed against Plaintiff. The Clerk is directed to enter judgment in favor of Defendant and closed this case. Signed by Judge Dudley H. Bowen on 08/27/2020. (thb)
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Chapman v. O&#039;Rourke Doc. 47 C" I c r<( U.o ui v. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA DUBLIN DIVISION M U C5 C. 1 PH 1^:00 CLERK nDdcLCA-. SO.T'ISI C.-Ta. * EVA CHAPMAN, f\ _ m 'k k Plaintiff, * CV 318-014 V . * * ROBERT WILKIE, Secretary, United States Department of Veterans Affairs, k k k k Defendant. ORDER On October 29, pro se, 2018, Plaintiff Eva Chapman, who is proceeding filed an Amended Complaint as directed by the Court in its Dismissal Order of October 2018 9, (doc. no. 16} . Following another motion to dismiss filed by her former employer. Robert Wilkie, the Secretary Veterans Affairs ("VA") , which may Plaintiff selected for 12-709875-DP) DAHP) in 2012 the of the United States proceed position of retaliation (See Order of April 5, Department of the Court held that the only claims upon are her claims Registered that Nurse 2019, for Doc. her No. prior 24. ) she was (Wound Care) or of Supervisory Program Specialist in Defendant not (OA- (OA-12-701395- protected activity. Following the case's Dockets.Justia.com discovery period, Defendant filed a motion for summary judgment, which the Court resolves herein. I. At the outset, adequately fulfilled INTRODUCTORY REMARKS the the Procedure 56 and this Court notes requirements that of district's Local summary judgment motion. Plaintiff Federal Rule has not of Civil Rules in litigating the As required by any movant at summary \\ provided a separate, short, and concise judgment. Defendant statement of evidence. (See Def.'s St. of Undisputed Material Facts ("SOUMF"), facts n material Doc. No. 37-35.) supported by citation to record Plaintiff was required to controvert these facts. 1 but not with conclusory^ assertions, opinion, and speculation. See Chapman v. AI Transp., 229 F.3d 1012, 1051 n.34 (ll^h cir. 2000) (stating that subjective perceptions, conclusory allegations, or allegations that are otherwise unsupported by record evidence do not create genuine issues of material fact in order to withstand summary judgment). supported by Defendant's evidence 1 but Plaintiff's admissible SOUMF, simply version evidence. Plaintiff denies does each A In not and of the directly cite every to facts must be responding to any additional factual assertion. Conclusory' means 'expressing a factual inference without f // stating the underlying facts on which the inference is based. Anderson v. Brown Indus., Inc., 2012 WL 12501083, *2 n.3 (N.D. Ga. Nov. 5, 2012) (quoting Black's Law Dictionary 308 (8^^ ed. 2004)). 2 sometimes only with one word "disputed. // (See Doc. No. 43-1.) Plaintiff also presents her own Statement of Undisputed Material Facts (doc. beliefs, denials 43-2), no. opinion, cannot and serve which are Her innuendo. to refute statements of material fact. dominated by her unsupported conclusory statements Defendant's properly and supported Moreover, when there is a genuine dispute of fact, it is largely immaterial to the issues in the case. The evidence Court and particularly argument notes that center primarily Plaintiff's upon her submitted attempt to relitigate matters that transpired two and three years before the relevant time period in this case. Importantly, a pro se litigant w does not escape the essential burden under summary judgment standards of establishing that there is a genuine issue as to a fact material to [her] case in order to avert summary judgment. (11th cir. 1990) . SOUMF is n Brown v. Crawford, 906 F.2d 667, 670 Thus, where a fact asserted by Defendant in its supported by the evidentiary materials submitted in support and Plaintiff fails to rebut the supported fact with her own admissible evidence. the fact is undisputed. A citation to Defendant's SOUMF herein indicates that the Court deems the fact admitted as uncontroverted by Plaintiff. The parties should rest assured that even though federal judges are not obligated to cull the record in search of facts not included in the statements of fact, see Johnson v. City of Fort Lauderdale, Fla. , 3 126 F.3dl372, 1373 (11th cir. 1997), the Court conducted a thorough review of the admissible evidence of record to determine whether there is an Of course, evidentiary basis for any assertion of either party. where there is conflicting evidence on any particular, relevant point, the Court views the evidence in the light most favorable to Plaintiff. Finally, Plaintiff fails to make a single argument in opposition to Defendant's motion for summary judgment respecting the position DAMP). as of Supervisory Program (OA-12-701395- Specialist Thus, the Court will make short work of this claim so long Defendant's factual contentions respecting this claim are supported by record evidence and those facts require judgment in Defendant's favor. have found that Indeed, other district courts in this circuit when a non-movant fails to address a claim at summary judgment but responds to other arguments, the non-movant abandons these claims. See Johns v. CSX Transp., Inc., 210 F. Supp. 3d 1357, 1373 (M.D. Ga. 2016) (citing cases). II. A. FACTUAL BACKGROUND Plaintiff's Employment On September 28, 2008, Plaintiff was appointed, subject to a two-year probationary term, as a Staff Nurse at the Carl Vinson VA 4 (Def.'s SOUMF Medical Center in Dublin, Georgia.2 employed with the Carl Vinson VA as a Staff While 1.) Nurse, Plaintiff provided generalized nursing care to patients in various units. (Id. SI 2.) According to Plaintiff, she also provided specialized nursing care to include wound care. On September 20, 2010, a (See PI.'s SOUMF SI 2. ) Summary Review Plaintiff's separation from VA employment. The Board found that although her nursing Board recommended (Def.'s SOUMF SI 3.) practice had been satisfactory. Plaintiff's interpersonal relationships and overall (Id. SI 5.) rating were unsatisfactory. Board found Plaintiff had engaged in More particularly, the conduct unbecoming a VA employee; had unacceptable attendance (absences amounting to 28% of her scheduled hours over a nearly two-year period without adequate documentation to support the excessive leave) ; and had engaged in consistent conduct creating a hostile work environment. (Id. SI 4 . ) Defendant allowed Plaintiff the option of resigning in 2 This first fact is a prime example of Plaintiff's failure of proof. Defendant provides the Notice of Personnel Action, in which the probationary period is expressly noted. (Def.'s Mot. for Summ. J., Ex. 1 at 2 ("Subject to Completion of 2 Year Probationary Period Commencing *09-28-2008.").) Moreover, the statutory authority for her appointment is 38 U.S.C. § 7401 et seq.; thereunder, § 7403(b) (1) expressly provides that nursing In appointments are subject to a two-year probationary period, response. Plaintiff points to the same evidence - the Notice of Personnel Action and the statutory authority - but summarily denies that she was on probationary status. Her self-serving statement to the contrary does not create a genuine dispute of fact on the issue of whether she was a probationary employee. 5 lieu of termination, which she accepted. The effective (Id. f 7. ) date of resignation was September 24, 2010. ^ (Id. B. 8.) Plaintiff's Prior EEO (Equal Employment Opportunity) Activity Prior to the termination of her employment. in March 2009, Plaintiff sought informal counseling related to claims that her supervisor, Ms. Skinner-Davis, discriminated against her on the basis of race in matters related to scheduling and leave requests. (Id. I 10.) The matter was closed on June 10, 2009, and Plaintiff (Id. did not file a formal complaint of discrimination. 10 11. ) One year later, on June 25, 2010, Plaintiff again sought informal counseling, this time directed toward Nurse Manager Sally Reese. (See \\ // Reprisal (Id. ) is Def.'s Mot. listed and for Summ. J., the March 2009 Ex. 9. ) matter The is claim of referenced. Plaintiff claimed that Nurse Reese harassed her about her leave, emailed other nurse managers and interviewed various staff members about her, and misrepresented facts in a memorandum against her. Plaintiff also complained scheduling and management. about Nurse Reese's unfair (Id.) 3 Plaintiff takes exception to the process utilized by Defendant in terminating her employment and with the stated reasons for termination. (See PI.'s SOUMF 3-9.) Matters related to Plaintiff's termination/resignation are not at issue in this retaliation case, which is based upon Defendant's failure to rehire Plaintiff two years after her termination/resignation. 6 On September 24, 2010, the last day of her employment. Plaintiff filed a form complaint of discrimination based upon the June 2010 claims. (Def.'s Mot. for Summ. J., Ex. 9.) She amended her complaint on October 8, 2010, alleging that human resources tried to keep favorable evidence from the Summary Review Board, that she had been put in absent-without-leave status and not paid. and that four individuals authorization. 2012, the accessed her health records (Id. Ex. 11; Def.'s SOUMF ^ 14.) VA's Office of Employment without On February 21, Discrimination Complaint Adjudication determined in a Final Agency Decision that Plaintiff failed to prove she was discriminated against based on reprisal and disability.'’ (Def.'s SOUMF ^ 17.) The decision determined. however, that the VA's Office of Resolution Management had erred in previously dismissing Plaintiff's allegation that her medical records were improperly counseling on that claim.^ accessed and directed Plaintiff to (Id. SI 18. ) On March 14, 2012, Plaintiff contacted an EEO counselor and later filed a complaint of discrimination, again complaining that Plaintiff apparently raised her disability discrimination charge as another basis of discrimination sometime after June 25, 2010. (See Def.'s Mot. for Summ. J., Ex. 12, Final Agency Decision at 3 n.2. ) 5 Plaintiff expends a great deal of energy explaining that the EEO counselor did not state her claims correctly and trying to reargue The the merits of her claims involved in this prior EEO case, underlying facts and circumstances, however, are not relevant to Plaintiff's claims of failure to hire based upon reprisal. 7 employees improperly accessed her medical records in 2009 and 2010. She also alleged that she was not hired for three VA positions between March 27, 2012 and June 12, 2012 due to disability, race. (Id. ^ 19; see also Def.'s and reprisal for prior EEO activity. Mot. for Summ. J., Exs. 13-15.) 2012 . John S. Goldman, Director of the Carl Vinson VA Medical Center, and Sue Preston, Associate Director of Patient Care (Id. gi 21. ) Service, were in attendance. C. A mediation occurred on June 5, Position of Registered Nurse (Wound Care) (OA-12-709875-DP) In July 2012, the Carl Vinson VA Medical Center announced a vacancy for a Registered Nurse (Wound Care) with an open period from July 23, announcement 2012 to sought a August 13, candidate (Id. 2012. to The 22.) coordinate and manage caregivers and patients with acute and chronic wounds, fistulas, pressure ulcers, and ostomies. required the candidate to (Id. assess 23.) wound care The position also practices facility and provide education to nursing personnel. The announcement highlighted, in underscore, that in wound care nursing was desirable and at the (Id. 524.) a certification provided that, at a minimum, the selected candidate would have to obtain certification within one year. (Id. 5 25.) It further instructed: IN DESCRIBING YOUR EXPERIENCE, PLEASE BE CLEAR AND SPECIFIC. WE MAY NOT MAKE ASSUMPTIONS REGARDING YOUR EXPERIENCE. (Id. 5 26 (emphasis in original).) Plaintiff applied for the position. Her resume included the two years of work experience as a Staff Nurse at the VA as well as her experience as a school nurse from 2005 to 2007 and various nursing experiences nineties. from the late eighties throughout the The resume did (See Def.'s Mot. for Summ. J., Ex. 2.) In (See id.) not reflect a certification in wound care nursing. fact, the term "wound care" appears nowhere on her resume. (See id.; Def.'s SOUMF f 31.) The VA's candidates vacancy: 31. ) as human resources potentially department eligible for the identified wound care Plaintiff, Robert Rech, and Christine Grizzard. three nursing (Id. SI All three candidates were licensed as Registered Nurses and none indicated that they held a wound care certification. However, Rech listed wound care as among his job responsibilities during And, Grizzard his two-year experience in an emergency department. made several passing references to her wound care responsibilities in recounting her many years of experience as a medical-surgical nurse from 1994 forward. (Id. SISI 34-37; see also Def.'s Mot. for Summ. J., Exs. 20 & 21.) Sue Preston, who had been involved in the mediation of Plaintiff's prior complaints about job selection in 2012, was the selecting official for the Registered Nurse (Wound Care) position. Preston determined that there were no qualified applicants with adequate wound care experience and 9 returned the certificate on August 23, 2012 39.) wound The different without care conducting interviews. nurse position Job Announcement with an 2012 to September 20, 2012. (I^ was open 40.) re-announced Conner was selected for the position. under a period from August 29, Plaintiff did not apply (Id. 51 41. ) for this re-announced position. (Def.'s SOUMF SI Ultimately, Teresa Conner had a wound care certification and had worked the previous four years as the lead wound care nurse at the Houston Medical Center. (Id. 51 42. ) D. Position DAHP) of Supervisory Program Specialist (QA-12-701395- In July 2012, the Carl Vinson VA Medical Center also announced a vacancy for a Supervisory Program Specialist with an open period from July 12, 2012 to August 1, 2012. (Id. 51 43.) The summary of this position states that the selectee would serve as a supervisor for non-VA purchased care.® (Def.'s Mot. for Summ. J., Ex. 26.) Plaintiff submitted a virtually identical resume in support of her application for this position. (Def.'s SOUMF 51 49. ) The selecting official for this position was Joan L. White-Wagoner, the Chief of Health Administration. did not activity. know (Id. Plaintiff 5151 and 55-56.) had In no (Id. 51 53.) knowledge her Amended of White-Wagoner her Complaint, prior EEO Plaintiff alleges that Human Resources Specialist David Petrasek had placed ® For a more detailed description of this position, see Exhibit 26 to Defendant's motion for summary judgment. 10 her on a do-not-hire list because of an EEO complaint she had filed against him however, previously. had no (Am. involvement in Supervisory Program Specialist Moreover, the only Petrasek is dated selected Rhonda Compl. the Benson, 13, who 5, (Id. had been SI process of 60.) working Petrasek, 2.) (Def.'s complaint 2014. SI selection position. discrimination June at as for SOUMF SI record the 58.) against White-Wagoner a Lead Claims Analyst at the Carl Vinson VA since 2009, for the position. (Id. SI 57 . ) III. SUMMARY JUDGMENT STANDARD The Court should grant summary judgment only if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. n Fed. R. Civ. P. 56(a) . The purpose of the summary judgment rule is to dispose of unsupported claims or defenses which, as a matter of law, raise no genuine issues of material fact suitable for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In considering a motion for summary judgment, all facts and reasonable inferences are to be construed in favor of the nonmoving party. Hogan v. Allstate Ins. Co., 361 F.3d 621, 625 (11th Cir. 2004). Moreover, [t]he mere existence of some factual dispute will not defeat summary judgment unless the factual dispute is material to an issue affecting the outcome of the case. 11 The relevant rules of substantive law dictate the materiality of a disputed fact, A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor. Chapman, 229 supplied). however. \\ F.3d The at 1023 party (quoted opposing the source omitted) summary (emphasis judgment motion, may not rest upon the mere allegations or denials in its pleadings. Rather, its responses . . . must set forth specific ft facts showing that there is a genuine issue to be tried. Walker V. Darby, 911 F.2d 1573, 1576-77 (Ifth cir. 1990) . The Clerk gave the nonmoving party, the Plaintiff, notice of the summary judgment motion and the summary judgment rules, of the right to file affidavits or other materials in opposition, and of the consequences of default. (Doc. No. 38.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are The satisfied. time for filing materials in opposition has expired, and the motion is ripe for consideration. IV. LEGAL ANALYSIS Plaintiff's claims of reprisal for prior EEC activity arise under Title VII and the Rehabilitation Act. The anti-retaliation provision of Title VII forbids retaliation against an individual // who has \\ made a charge, testified, assisted, or participated in a Title VII proceeding or investigation. 12 42 U.S.C. § 2000e-3(a). Similarly, the Rehabilitation Act, which incorporates the anti¬ retaliation provision of the Americans with Disabilities Act ("ADA"), forbids retaliation by the federal government against an individual who has the ADA. retaliation See w opposed any act or practice made unlawful" by 29 U.S.C. provision § of 794(d) the (incorporating ADA, 42 U.S.C. the § anti- 12203). Retaliation claims under the Rehabilitation Act are analyzed under the same framework used to assess Title VII retaliation claims. E.g., Burgos-Stefanelli v. Sec'y, U.S. Pep't of Homeland Sec., 410 F. App'x 243, 245 (11^^ cir. 2011). In a case based only upon circumstantial evidence, as here. the court will use the McDonnell Douglas burden shifting framework in evaluating a motion for summary judgment. 7 Under this framework, the plaintiff bears the initial burden of creating an inference of discrimination by establishing a prima facie case. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (ll^h Cir. 2001). Once a plaintiff has done so. the burden shifts to the employer to articulate legitimate, non-retaliatory reasons for the challenged employment action. Id. If the employer proffers such reasons, the burden shifts back to the plaintiff to show that the employer's proffered retaliatory conduct. 1 reasons Id. are merely pretext for prohibited The plaintiff must meet the proffered Plaintiff has presented no direct evidence of reprisal. 13 reasons The w head on and rebut [them] . plaintiff cannot survive quarreling with the wisdom n // Chapman, 229 F.3d at 1030. summary judgment of these reasons. Id. \\ by simply Rather, the plaintiff must produce a reason sufficient to allow a reasonable factfinder to determine that the proffered reasons were not what actually motivated the employer's conduct. Crockett v. GEO Grp., Inc., 2014) 582 F. App'x 793, 797 (llt^ cir. (quoted source omitted). To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in statutorily protected activity; (2) she suffered a materially adverse employment action; and (3) there was some causal relationship between the two events. V. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310 (llthcir. Furcron 2016). Plaintiff can establish the first two prongs of the prima facie case in that she engaged in statutorily protected activity in filing prior EEC complaints and she was not hired for two announced positions. In consideration of the causal-relationship however. Plaintiff's case begins to unravel. becomes completely unspun once prong. Her reprisal yarn Defendant offers its legitimate. non-retaliatory reasons for its failure to hire her - reasons that she fails to rebut. A. Prima Facie Showing \\ To establish a causal connection, a plaintiff must show that the decision-makers were aware of the protected conduct [and] that 14 the protected activity and the adverse employment action were not wholly unrelated. n Gupta V. Fla. Bd. of Regents, 212 F.3d 571, \\ 590 (11th cir. 2000). For purposes of a prima facie case, 'close temporal proximity' may be sufficient to show that the protected activity and the adverse action were not 'wholly unrelated. However, the two r n Id. where a substantial period of time has elapsed between events engagement adverse employment action in the protected activity and the the causal connection is less likely to exist absent evidence demonstrating a connection between the two events. Breech v. Ala. Power Co., 962 F. Supp. 1447, 1461 (S.D. Ala. 1997) . With respect to the Supervisory Program Specialist position. Plaintiff has presented no evidence that the decision-maker, Joan L. White-Wagoner, knew Plaintiff or knew Plaintiff had engaged in In fact. Plaintiff alleges that she was not prior EEO activity. hired for that position because David Petrasek had placed her on a do-not-hire list. Yet, she offers no evidence that White-Wagoner knew about this alleged list, that she interacted with or consulted with Petrasek in her decision-making, or that Petrasek was in any way involved position. Petrasek Of in filling note, occurred the almost announced and filled. the Supervisory only two Program discrimination years after claim this Specialist involving position was Simply put, the record is devoid of evidence of a causal relationship between Plaintiff's prior EEO activity 15 and the failure to hire her to the position of Supervisory Program Specialist. Indeed, Plaintiff presents no evidence or argument to support her claim as to this position. Accordingly, Plaintiff has failed to show a prima facie case of retaliation, and Defendant is entitled to summary judgment on Plaintiff's claim that she was not hired for Supervisory Program Specialist as an act of Defendant's reprisal. Turning now to the Registered Nurse (Wound Care) position. Plaintiff Preston, has presented evidence that the decision maker. knew of Plaintiff's protected activity in 2012. Sue That is, there is evidence that on June 5, 2012, Preston attended the mediation of Plaintiff's EEC complaints lodged in March 2012. Preston chose not to fill the original vacancy for this position when she returned the hiring certificate on August 23, 2012 and a half months after the mediation. two Of note, Preston presumably may have become aware of Plaintiff's application for the position earlier than the decision to return the certificate unfulfilled. thereby shortening the temporal proximity. In any event, while Defendant urges that two and a half months is too remote to raise an inference of causation, the Court finds that the time period involved may be just inside the necessary proximity so as not to The EEC activity in 2009 and 2010 are too remote in time to be Besides, there is no admissible relevant to the causal inquiry, evidence that Preston was in any way involved in or knew about this earlier EEC activity. 16 preclude an inference of causation. Compare Higdon v. Jackson, 393 F.3d 1211, 1220-21 (11th cir. 2004) (three-month gap is too long to show causation) with Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, sufficient). 1337 (11th cir. 1999) (seven-week period is In any event, even assuming Plaintiff can establish a prima facie case through the temporal proximity between Preston's involvement selection, in Plaintiff's her claim of EEC activity retaliation and cannot Plaintiff's survive non¬ summary judgment because, as discussed below, she has failed to provide evidence that Defendant's articulated non-retaliatory reason not to hire her is pretext for retaliation. B. Non-Retaliatory Reason/Evidence of Pretext The employer's burden to show a legitimate, non-retaliatory reason for an employment action is \\ exceedingly light. // Holifield V. Reno, 115 F.3d 1555, 1564 (ll^h cir. 1997), abrogated on other grounds by Lewis v. City of Union City, Ga., 918 F.3d 1213 (11th Cir. 2019) . hired for In this case. Defendant claims that Plaintiff was not the Registered Nurse (Wound Care) position because neither Plaintiff nor the other applicants had the requisite wound care experience. vacancy The announcement's record supports this reason. direction to be clear and Despite the specific in describing the applicant's qualifications. Plaintiff's resume did not note any wound care experience or particularized knowledge. In fact. Plaintiff's nursing experience was very similar to another 17 candidate, Ms. Grizzard, who mentioned wound care experience and was also reason not for The hired. not hiring record further Plaintiff (or bears the out others) Defendant's because the ultimate hire, Teresa Conner, had recently specialized in wound care. Plaintiff first tries to show pretext by quibbling with She Defendant's evaluation of her experience and qualifications. emphasizes that she was obviously qualified because the Registered Nurse (Wound Care) position was listed in the VN-0610) as specialties, her prior however, VA can nursing be \\ same series n Numerous position. listed under that 1.e., nursing same series. including respiratory, pediatric, geriatric, oncology, and wound care. (See Moreover, Decl. of Plaintiff's Terence belief Oster, that she Doc. was No. qualified position is not relevant to the pretext inquiry. pretext is based on own \\ SI 7. ) for the 46-1, The inquiry into the employer's beliefs, and not the employee's perceptions of [her] performance. // Holifield, 115 F.3d at 1565 (emphasis added); Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) ("The inquiry into pretext centers on the employer's beliefs, not the employee's beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker's head.") Moreover, the Court need only determine whether the difference between the selected candidate and Plaintiff is such weight and significance that no reasonable person, 18 in w of the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff. n See Kidd v. Mando Am. Corp., 731 F.3d 1196, 1206 (ll^h Cir. 2013) (quoted source omitted). Here, given the fact that the first vacancy announcement was returned as unfilled without granting interviews to any candidate but then filled by a clearly superior wound care nurse on the second vacancy announcement, it cannot be said that no reasonable person would have selected Teresa Conner over Plaintiff. Plaintiff next points out that she should have been provided preferential treatment as a veteran and as a former employee. However, the Registered Nurse (Wound Care) position was part of the excepted service under 38 U.S.C. § 7401 et seg., which means that selecting officials are not required to extend preference to applications from veterans as provided in the competitive service positions. discretion (See to Oster appoint Decl. certain <]1 8.9) former And, while employees the to VA has competitive service positions without competition. this provision also did not apply to the Registered (citing 5 C.F.R. § Nurse (Wound Care) position. 315-401(a) ).) . Accordingly, (Id. f 9 Plaintiff has failed to show pretext based upon the lack of preference she was given for the position because none was required. 9 Terence Oster is the Associate Chief Human Capital Officer of the VA Southeast Network, (Oster Decl. ^ 1. ) His prior work experience includes serving as a Human Resource Officer at the Carl Vinson VA Medical Center. (Id.) 19 Finally, Plaintiff complains that Conner's application was dated October 1, 2012, which is outside of the closing date on the second vacancy announcement of September 20, However, 2012. Plaintiff does not point to any authority that a selecting official is precluded from considering excepted service position. an untimely application for an (See id. ^ 13 ("Neither the collective bargaining agreement nor VA policy forbid a selecting official on an appointment under 38 U.S.C. § 7401(1) from considering application submitted after the announced closing date.") an It also bears mentioning that Plaintiff did not even apply to the position pursuant to the second vacancy announcement; thus, her complaints about the process of filling that position fall flat. In sum, even if Plaintiff were able to establish a prima facie case of retaliation in failing to hire her to the Registered Nurse (Wound Care) position, she has failed to adduce evidence creating a genuine issue of material fact that Defendant's reason for not hiring her was pretextual. In fact. Defendant's hire of a certified, wound-care specialist substantiates its non-retaliatory motive in cancelling the first vacancy announcement to obtain a more qualified candidate. summary judgment on Accordingly, Defendant is entitled to Plaintiff's reprisal Registered Nurse (Wound Care) position. 20 claim concerning the V. CONCLUSION Upon the foregoing, Defendant's motion for summary judgment (doc. no. 37) as to Plaintiff's claims of remaining claims in this case, is GRANTED. against Plaintiff. reprisal, the only Costs are assessed The Clerk is directed to ENTER JUDGMENT in favor of Defendant and CLOSE the case. ORDER ENTERED at Augusta, Georgia, this day of August, 2020. UNITED STATES DISTRICT JUQ 21
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