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Hamilton v. McDonald

United States District Court, E.D. Kentucky, Central Division, Lexington

March 27, 2017

EVA HAMILTON, Plaintiff,
v.
ROBERT A. McDONALD, in his official Capacity as Secretary of Veterans Affair Defendant.

          OPINION AND ORDER

          KAREN K. CALDWELL, CHIEF JUDGE

         This matter is before the Court on the motion to dismiss or, in the alternative, motion for summary judgment (DE 32) filed by the defendant. The plaintiff, who was an employee of the Veterans Administration, asserts that the VA failed to promote her because of her age.

         I. Background

         The facts in this matter are not in dispute. The plaintiff Eva Hamilton was hired by the Veterans Administration as a Medical Support Assistant in September 2008. (DE 34, Hamilton Dep. at 19.) She served in that position until 2015, when she began working in the VA data validation unit. (DE 34, Hamilton Dep. at 19.) As a Medical Support Assistant, Hamilton's duties included “a lot of customer service.” For instance, she checked patients in and made sure that patient paperwork was given to the appropriate staff and that patients were not left waiting in the waiting area. (DE 34, Hamilton Dep. at 21.)

         On January 30, 2014, while Hamilton was still a Medical Support Assistant, the VA announced a vacancy for the position of Supervisory Medical Support Assistant, referred to as Patient Aligned Care Team Supervisor or PACT Team Supervisor. (DE 32-2, EEO R. at CM-ECF p. 46.) Hamilton and 20 other individuals applied for the position. (DE 32-2, EEO R. at CM-ECF p. 39.) One of those individuals was Kristina Curry who, like Hamilton, was then employed as a Medical Support Assistant. Curry was hired at the VA in 2013. (DE 29, Curry Dep. at 6; DE 33-3, Curry Resume.)

         James Branham, Chief of Ambulatory Care in Health Administration Service (“HAS”) during the relevant time period, designed the application process. (DE 28, Branham Dep. at 4-5.) He attended high school with Curry and has known her for more than 25 years. (DE 28, Branham Dep. at 6-7.) Branham and his wife are both personal friends of Curry. (DE 28, Branham Dep. at 7.)

         He testified that the method he employed for hiring the PACT Team Supervisor was based on a hiring method employed by the VA's nursing department. (DE 28, Branham Dep. at 5, 12.) Branham was on sabbatical in the VA nursing department for five months. (DE 28, Branham Dep. at 12.) He described the hiring method in nursing as a “two-panel. . . Performance Based Interview process.” (DE 28, Branham Dep. at 12.) He testified that the Performance Based Interview (PBI) process is “kind of a situational based process that looks at specific things that we're interested in: customer service, technical capability, characteristics, knowledge, experience, et cetera.” (DE 28, Branham Dep. at 21.) Branham thought the two-panel process allowed for different perspectives and questions and that it allowed more people the opportunity to evaluate the applicants. (DE 28, Branham Dep. at 12.)

         The PACT supervisor position was the first supervisory position opening in HAS after Branham returned to the department from nursing and he wanted to employ the two-panel hiring process to fill it. (DE 28, Branham Dep. at 12-13.) Two panels of VA personnel conducted a separate five-question interview of all 19 applicants. (DE 32-2, EEO R. at CM- ECF p. 39.) Branham selected the members of each panel. (DE 28, Branham Dep. at 22.) Each applicant was interviewed by both panels. (DE 32-2, EEO R. at CM-ECF p. 39.) Each panel member scored each applicant.

         Hamilton's total score from the first panel was 65. Curry's was 55. The highest score received from the first panel by any applicant was 76 and the lowest was 31. (DE 32-2, EEO R. at CM-ECF pp. 40-41.)Hamilton's total score from the second panel was 49 and Curry's was 50. The highest total score received from the second panel for any applicant was 57 and the lowest was 37. (DE 32-2, EEO R. at CM-ECF p. 41.)

         After the interviews, but before calculating the interview scores, each panel was then asked to recommend the top five or six applicants for a second round of interviews. (DE 32-2, EEO R. at CM-ECF p. 39.) Because only two applicants were on both panels' list of recommendations, the VA asked each panel member to provide their third and fourth recommendations. (DE 32-2, EEO R. at CM-ECF p. 40.) Neither Hamilton nor Curry made both panels' recommendation lists. As to the third and fourth recommendations, the panels agreed that Curry and another individual should receive second interviews. Hamilton was not among the four recommended for a second interview. A fifth applicant was recommended for a second interview based only on her scores. (DE 32-2, EEO R. at CM-ECF p. 40.)

         The VA then conducted a second-level interview with these five applicants at which they conducted a 20-minute presentation on “Leadership: My Role in Veteran Centered Healthcare.” (DE 32-2, EEO R. at CM-ECF p. 41.) The candidates were evaluated based on “eye contact, presence, content, creativity, knowledge-base, originality, relevance, energy/enthusiasm, professionalism, overall presentation.” (DE 32-2, EEO R. at CM-ECF pp. 41-42.)

         Prior to scoring the candidates, the panel members were asked to recommend two applicants for a third and final round of interviews. (DE 32-2, EEO R. at CM-ECF p. 42.) The panel members agreed to send Curry and another applicant for a third round of interviews with Branham and the Assistant Chief, HAS. At the interviews, the final two applicants were asked to repeat their presentation. At the conclusion of their presentation, they were asked five additional questions. (DE 32-2, EEO R. at CM-ECF p. 43.)

         Branham and the Assistant Chief, HAS then had an “in-depth conversation” regarding the applicants. In the end, Branham recommended Curry for the position. (DE 32-2, EEO R. at CM-ECF p. 43.) In making his selection, he considered the PBI scores and “personality, knowledge base, education, presentation ability, “Best/Right Fit, ” experience, creativity/originality, approachability, leadership ability, performance, conduct, and references.” (DE 32-2, EEO R. at CM-ECF p. 43.)

         Branham recommended Curry to Carol Stevens, Chief of HAS, who was the selecting official and Stevens selected Curry for the position. (DE 30, Stevens Dep. at 13.) Curry stated she made the selection based on “all of the documentation, the panel, the references” and Branham's recommendation. (DE 30, Stevens Dep. at 13.) She testified that the documentation consisted of the “resume, the panel scores, the references.” (DE 30, Stevens Dep. at 13.) By e-mail to staff dated March 18, 2014, Branham announced that Curry had been selected for the position. (DE 32-2, EEO R. at CM-ECF p. 25.)

         On April 3, 2014, Hamilton complained to VA management included Laura Faulkner, Chief of Human Resources, regarding alleged irregularities in the selection process. (DE 33-2, Documents at CM-ECF p. 2.) Faulkner reviewed the merit promotion file and determined there was a problem with the selection process, “including there were several different panels interviewing different people.” (DE 32-2, EEO R. at CM-ECF p. 15.) Thus, Faulkner canceled the posting and “re-advertised the position to give everyone an opportunity in the selection process.” (DE 32-2, EEO R. at CM-ECF p. 15.)

         Stevens testified that she and Faulkner together decided to cancel Curry's selection. (DE 30, Stevens Dep. at 10-11.) She testified that, “HR looked at it and said this is different from the normal process, so they recommended that we can that announcement and re-announce, as we did.” (DE 30, Stevens Dep. at 11.) She testified that the “normal process” for hiring “was to have one interview panel who would interview all of the candidates and then they would submit their scores.” (DE 30, Stevens Dep. at 12.) She testified, “In the ordinary course, the top candidates would be under further review. We would do reference checks and . . . we would look at all the documentation . . . prior to making a decision.” (DE 30, Stevens Dep. at 12.) The documentation would include resumes. (DE 30, Stevens Dep. at 12.)

         On April 28, 2014, Faulkner posted a new job announcement for the position. (DE 32-2, EEO R. at CM-ECF p. 26.) Both Hamilton and Curry again applied for the position. This time, Curry's resume reflected that she was promoted to PACT Supervisor in March 2014 and it also provided an extensive list of her responsibilities in this position. (DE 33-3, Resume at CM-ECF p. 3.) A panel of four individuals recommended the three candidates with the highest PCI score for final consideration. Hamilton and Curry were among the three. (DE 32-2, EEO R. at CM-ECF pp. 37-38, 44.) Of the three, Curry received the second highest score (152) and Hamilton received the third highest score (152). A third applicant received the highest score (158). (DE 32-2, EEO R. at CM-ECF pp. 37-38.)

         Stevens was the selecting official. (DE 32-2, EEO R. at CM-ECF p. 55.) She conducted second-level interviews of the three candidates. (DE 32-2, EEO R. at CM-ECF p. 20, 55.) Stevens testified that she does not conduct a second round of interviews for every position but she did for this one because the top three candidates' scores were just eight points apart and the position was a management position. (DE 30, Stevens Dep. at 20-21.)

         On June 23, 2014, Smith submitted her justification for selecting Curry. (DE 32-2, EEO R. at CM-ECF p. 32.) This was prior to her interviews with the candidates. (DE 30, Stevens Dep. at 21.) Stevens explained that she drafted the justification for hiring Curry before the interviews because, at that time, the HR chief had not recommended that she conduct a second round of interviews for the position. (DE 30, Stevens Dep. at 21.)

         Stevens interviewed Curry on July 11, 2014. (DE 32-2, EEO R. at CM-ECF p. 34.) In her justification for selecting Curry, Stevens stated that Curry “has experience both as a supervisor in the private sector, and as a current medical support assistant at the VA. These experiences make her the ...


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