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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.
Ellis, III United States District Judge
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);plaintiff claims the DoDEA discriminated
against him on the basis of his age (67); 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
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.
defendant's motion for summary judgment has been fully
briefed and argued, it is now ripe for disposition.
following facts are pertinent to the resolution of the
Secretary's motion for summary judgment:
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.
o On April 21, 2008, DoDEA advertised a vacancy for a health
education distance learning ("distance learning")
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,  was hired for the distance
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
o On May 20, 2008, DoDEA advertised a vacancy for an
Instructional Systems Specialist (foreign language)
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")
o Plaintiff did not initially apply for the position, but he
did apply when the position was re-advertised for a second
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
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
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