United States District Court, D. Maryland
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this employment discrimination case is the motion to dismiss, or in the alternative, for summary judgment filed by Defendant Kathleen Sebelius ("the Secretary" or "Defendant"). (ECF No. 8). Also pending are Plaintiff's motions to deny Defendant's motion (ECF No. 32) and for leave to file a surreply (ECF No. 36). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion will be granted and Plaintiff's motions will be denied.
A. Factual Background
This dispute arises out of Maria Agelli's ("Dr. Agelli" or "Plaintiff") non-selection for a position at NIH. The National Cancer Institute ("NCI"), an institute of the NIH, has employed Dr. Agelli as a Medical Officer, at the GS-14 pay grade, since 2001. (ECF No. 1 ¶ 7). Plaintiff was born in 1952, and was fifty-nine (59) years old during the events at issue. ( Id. ¶ 3). In July 2011, NIH advertised an opening on the USAJOBS system: NIH-NCI-DH-11-507121 ("Vacancy 121"). The position was for a Medical Officer (Research), at the GS-15 pay grade, in the Department of Health and Human Services, NIH, NCI, Division of Cancer Control and Population Sciences ("DCCPS"), Epidemiology and Genetics Research Program ("EGRP"). ( See ECF No. 8-2). Through this vacancy, Dr. Muin Khoury, Acting Associate Director of EGRP, DCCPS, NCI, NHI, attempted to recruit an individual to lead the "Knowledge Management Unit" within the Office of the Associate Director of EGRP. (ECF No. 8-3 ¶ 3; ECF No. 28-1, at 1). The major duties advertised for the position included: (1) providing leadership for the direction of nationwide extramural research programs in cancer epidemiology; (2) planning, developing, directing, coordinating and evaluating a program of epidemiologic research to study differences in cancer susceptibility and risk in individuals and populations and the multiple environmental and genetic factors that jointly contribute to cancer, with the ultimate goal of elucidating the etiology of cancer; (3) serving as a medical liaison between the NCI and numerous cancer research working groups and committees and between own organization and other NCI programs; and (4) facilitating the dissemination of information about the risk factors and causes of cancer to inform cancer prevention and control interventions. (ECF No. 8-2, at 1-2). The initial closing date for the announcement was August 11, 2011, but the application deadline was extended to August 31, 2011 due to technical difficulties on USAJOBS. Plaintiff initially submitted some application materials on August 10, 2011, (ECF No. 28-5),  and later submitted a complete application on August 31, 2011. EGRP received a total of twenty-three (23) applications for this position, including Dr. Agelli's. (ECF No. 8-5). On September 15, 2011, Plaintiff, and the twenty-two other applicants for the position, received a message stating that "[t]he vacancy announcement... was cancelled or postponed." (ECF No. 8-6, at 2). Thus, none of the applicants to the position, including Dr. Agelli, were interviewed or selected for the position. The Knowledge Management Unit Lead position was not filled, and the position has not been readvertised since its cancellation in September 2011. Stacey Vandor, the Planning Officer for DCCPS, informed Dr. Khoury that "the vacancy announcement was being cancelled because the fulltime equivalent ("FTE") was needed for a senior-level position in a different program within DCCPS." (ECF No. 8-4 ¶ 3). Ms. Vandor affirms that "[t]he FTE was rescinded because in or about June 2011, the Associate Director for the Surveillance Research Program ("SRP") in DCCPS was detailed to a position in another part of the Division." (ECF No. 8-3 ¶ 4). Ms. Vandor explains that "[a]s a result of the detail, it was later determined that a GS-15 FTE was needed for SRP so that a senior-level employee could be hired to perform the duties of the Associate Director for SRP." ( Id. ). Ms. Vandor decided "that rescinding the FTE for the EGRP position and moving it to SRP was the best allocation of resources for DCCPS." ( Id. ¶ 5). Ms. Vandor affirms that she informed Dr. Khoury of this decision in late July 2011, before the applications were submitted and received for the position. Because the announcement was cancelled, Dr. Khoury initially took on the role as Acting Knowledge Management Unit Lead. (ECF No. 8-4 ¶ 9; see also ECF No. 35-7). Dr. Khoury avers that he no longer serves as the Acting Knowledge Management Unit Lead, and that responsibility is now shared among five teams within EGRP. (ECF No. 35-1 ¶ 2).
In October 2011, NIH posted another job announcement, NIH-NCI-DE-12-544615 ("Vacancy 615"), for a "Health Scientist Administrator" position in EGRP, at a GS-13/14 pay grade. (ECF No. 8-7). The job announcement sought a "Knowledge Integration Team Lead." The major duties of that position as advertised were: (1) serving as a Program Officer with responsibility for providing scientific leadership and guidance to the planning, development, implementation and evaluation of the genomic and/or epidemiologic related research program; (2) performing scientific and administrative reviews and analyses of applications/proposal from a programmatic viewpoint; (3) preparing information for and attending advisory/review committee/panel meetings and responding to issues and concerns about specific applications/proposals pertaining to genomic and/or epidemiologic related research; and (4) developing, coordinating and administering grants, cooperative agreements and contracts established to fulfill the mission. ( Id. at 1). The announcement designated October 31, 2011 as the application deadline. NIH received over one hundred applications for this position. Dr. Agelli did not apply for Vacancy 615. ( See ECF No. 8-8). In or about January or February 2012, Dr. Khoury selected Dr. Sheri Schully, Ph.D., for the position, at a GS-14 pay grade. (ECF No. 8-9). Dr. Khoury attests that at the time, Dr. Schully, whom Plaintiff believes to be in her thirties, was serving as a "Health Science Administrator" in EGRP at a GS-14 pay grade, and her selection to be the Knowledge Integration Team Lead was a lateral promotion. Dr. Khoury attests that aside from having a lower pay grade, the position was "more junior-level" than Vacancy 121, to which Dr. Agelli applied, but which was never filled. (ECF No. 8-4 ¶ 8).
B. Procedural History
Plaintiff filed the instant complaint against the Secretary on February 15, 2013, alleging non-selection based on age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"). (ECF No. 1). Plaintiff believes that "NCI chose to keep [Vacancy 121] officially vacant rather than selecting her." ( Id. ¶ 14). Although Dr. Agelli acknowledges that she did not apply for Vacancy 615, the position for which Dr. Schully was selected, Plaintiff believes that Dr. Schully was given the duties of the position advertised in Vacancy 121. Plaintiff's principal contention is that "the factual appointment of an employee with half her age to the duties of the position, despite the lack of qualifications for the position itself, proves that [Plaintiff] was discriminated against because of her age." ( Id. ). On May 14, 2013, Defendant submitted a "Notice of Related Case, " in which the Secretary informed the court of a previous employment discrimination action that Plaintiff instituted against the Secretary, which Judge Titus dismissed in September 2010, and which decision the Fourth Circuit affirmed in February 2012. ( See ECF No. 7). Defendant noted that "[a]lthough the [instant] case involves an allegedly discriminatory non-selection that occurred after the challenged employment actions involved in the previous case, the parties in both cases are identical and, given the nature, breadth, and extent of Plaintiff's allegation of discrimination in the previous case, there would be a substantial duplication of labor if another judge were to hear the new case." ( Id. at 2). The case remained before the undersigned.
Defendant subsequently filed a motion to dismiss or, in the alternative, for summary judgment on May 16, 2013. (ECF No. 8). Plaintiff then moved six (6) times for an extension of time to file her opposition, which motions were granted. On September 25, 2013, the court issued an order granting Plaintiff's motion for an extension of time and directing that she submit the opposition by October 7, 2013. (ECF No. 24). Without moving for an extension of time, Plaintiff submitted an untimely opposition on October 31, 2013, which identified twenty-seven (27) documents she purported to include as exhibits. (ECF No. 25). On November 7, 2013, Plaintiff submitted twenty-five documents (exhibits 3-27), which did not include all of the exhibits Plaintiff presumably intended to submit with her opposition. (ECF No. 28). Consequently, Defendant moved to strike as untimely Plaintiff's opposition, or alternatively, requested that Plaintiff be provided a final deadline of November 29, 2013 to submit the outstanding documents. (ECF No. 26). On November 14, 2013, the undersigned issued an order granting in part Defendant's motion and directing Plaintiff to file all outstanding materials by November 22, 2013. (ECF No. 29). Plaintiff filed most of the supplemental documentation on November 22, 2013, (ECF No. 31), although she submitted a Rule 56(d) affidavit on December 2, 2013, (ECF No. 32-2), along with her motion to deny Defendant's motion to dismiss or for summary judgment. The Secretary filed a reply to Plaintiff's opposition on January 3, 2014. (ECF No. 35). Plaintiff then moved for leave to file a surreply on January 22, 2014. (ECF No. 36).
II. Standard of Review
The Secretary has moved to dismiss or, alternatively, for summary judgment. Because both parties rely extensively on matters outside the pleadings, the motion will be treated as one for summary judgment. See Walker v. True, 399 F.3d 315, 319 n.2 (4th Cir. 2005); Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md. 2008).
Summary judgment may be entered only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue "may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
"A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [her] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) ( quoting former Fed.R.Civ.P. 56(e)). "A mere scintilla of proof... will not suffice to prevent summary judgment." Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50 (citations omitted). At the same time, the ...