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Boue v. Mattis

United States District Court, E.D. Virginia, Alexandria Division

April 17, 2018

GARY BOUE, Plaintiff,
JAMES MATTIS, U.S. Secretary of Defense, Defendant.


          T. S. Ellis, III United States District Judge

         Plaintiff, a high school teacher currently employed by the Department of Defense Education Activity ("DoDEA") at Ramstein Air Base, Germany, asserts three claims against his employer: (i) plaintiff claims the DoDEA denied him two positions because of his race/ethnicity (Hispanic) and gender (male);[1]plaintiff claims the DoDEA discriminated against him on the basis of his age (67);[2] and (iii) plaintiff further claims that the DoDEA issued him a letter of reprimand in retaliation for him filing a complaint with the Equal Employment Opportunity Commission ("EEOC").[3]

         At issue on defendant's summary judgment motion is: (i) whether plaintiff has established prima facie cases of race, sex or age discrimination; (ii) whether the summary judgment record reflects there is a triable issue of fact as to whether defendant proffered of a legitimate non-discriminatory reason for not selecting plaintiff for the two positions; (iii) whether the summary judgment record would permit a reasonable juror to believe that defendant's proffered non-discriminatory reason is pretext for discrimination; and (iv) whether the record creates a triable issue of facts as to whether the letter of reprimand plaintiff received was an adverse employment action caused by plaintiff engaging in protected activity, namely filing an EEOC complaint. See Def.'s Mot. Sum. J.

         Because defendant's motion for summary judgment has been fully briefed and argued, it is now ripe for disposition.


         The following facts are pertinent to the resolution of the Secretary's motion for summary judgment:[4]

o DoDEA is an agency of the United States Department of Defense that establishes and administers schools for the education of dependents of military members in the United States and abroad.
o Plaintiff is currently employed by DoDEA as a health and sociology teacher at Ramstein High School located on Ramstein Air Base in Germany.
o Plaintiff is a sixty-seven (67) year old male who self-identifies as Hispanic.[5]
o On April 21, 2008, DoDEA advertised a vacancy for a health education distance learning ("distance learning") teacher.
o To be qualified for the advertised distance learning position, as set forth in the vacancy announcement, the applicant (i) must be able to "plan, organize, and present information and instruction via an online content delivery system, " (ii) must "have experience teaching via distance learning, " and (iii) should have "recent[] experience related to modern teaching techniques and the ability to carry out online instruction." Def.'s Exhibt B2 (Doc. 45-5.)
o Plaintiff applied for the distance learning position.
o DoDEA determined that plaintiff was minimally qualified for the distance learning position and referred plaintiff to the hiring official, Patricia Riley. Ms. Riley and Barbara Weigand, another DoDEA employee Ms. Riley selected to assist her with the evaluation process, determined that plaintiff should be interviewed for the position.
o Ultimately plaintiff was not selected for the distance learning position. In fact, none of the original applicants were selected, requiring DoDEA to re-post the vacancy and solicit new applications.
o Plaintiff did not apply for the distance learning position a second time and ultimately Jaclyn Stockton-Sooy ("Stockton-Sooy"), a Caucasian female who was approximately plaintiffs age, [6] was hired for the distance learning position.
o Stockton-Sooy, like the plaintiff, had many years of classroom experience teaching health related subjects.
o Unlike plaintiff, however, Stockton-Sooy had experience developing virtual curriculum and online course work.[7]
o On May 20, 2008, DoDEA advertised a vacancy for an Instructional Systems Specialist (foreign language) ("ISS-FL").
o After learning he had not been selected for the distance learning position, plaintiff applied for the ISS-FL position.
o The ISS-FL position involved overseeing all foreign language curricula throughout DoDEA schools in Europe, including developing a district-wide evaluation program and providing staff development services.
o The vacancy announcement for the ISS-FL position noted that to qualify for the position applicants needed to be certified in one foreign language and possess "experience" with "more than one" foreign language. The Vacancy Announcement further instructed that candidates would be evaluated based on their narrative responses to six "Knowledge, Skills and Abilities" ("KSA") questions.
o Plaintiff did not initially apply for the position, but he did apply when the position was re-advertised for a second time.[8]
o Plaintiff was referred to the evaluation panel by DoDEA's human resources division, which certified that plaintiff met the position's minimal qualifications.
o The evaluation panel, which consisted of Laurel Eisinger, Reynaldo Toquero and David Markewitz, considered twelve (12) candidates for the ISS-FL position, including plaintiff and Tracy Knick ("Knick"), the Caucasian female who was ultimately selected for the position.
o Based on Knick's answers to the KSA questions, the three person evaluation panel assigned Knick the following scores: 29/30, 29/30 and 26/30.
o Based on plaintiffs answers to the KSA questions, the evaluation panel assigned him the following scores: 15/30 and 22/30. Only two members of the evaluation panel scored plaintiff. The third member of the panel, David Markewitz, recused himself from this process because he had a personal Stockton-Sooy notes in her resume that in 2007 she completed fifteen credits of Blackboard training. See Pl.'s Ex. B8. Blackboard is a popular virtual learning platform. See http://www.blackboard.eom/k 12/online-learning-platforms.html. relationship with plaintiff.
o At the time of the 2008ISS-FL vacancy, Knick (i) had a master's degree in a foreign language, (ii) was certified in French and had experience with at least two other languages, and (iii) had experience as a district-wide administrator, specifically serving as the coordinator of the World ...

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