Vasser v. Shinseki
280 F. Supp. 3d 9
| D.D.C. | 2017Background
- Vivian Vasser, an African-American VA supervisory social worker (Team Leader), applied for multiple promotions in RCS (Deputy Regional Manager and Regional Manager for Region 3A/Bay Pines) between 2008–2011 and was not selected. She filed EEO complaints and later sued under Title VII for race and sex discrimination and retaliation.
- Deputy Regional Manager (2008–2009): Vasser says Walker interviewed her, orally told her he would recommend her, then the vacancy was canceled and later re-advertised; VA selected Wayne Plummer (white) without interviews. Walker denies informing or selecting anyone earlier.
- Regional Manager (2010–2011): Multiple vacancy announcements were canceled or reclassified (GS-14 → GS-15). Dr. Alfonso Batres (selecting official) ultimately selected Sarita Figueroa after internal steps that included restricting the area of consideration, rewriting the PD, giving Figueroa early access to the PD, HR staff helping tailor her resume, and two HR staff who assisted her serving on the interview panel.
- The VA Office of Inspector General found Batres intended to hire Figueroa before announcement, aided her, and committed prohibited personnel practices; OIG described Batres and Figueroa as close personal friends.
- District Court denied the Secretary’s motion for summary judgment: it found triable issues of fact as to pretext and whether discrimination or retaliation motivated non-selections, and thus the claims must proceed to jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Non-selection for Deputy Regional Manager — race discrimination | Vasser: Walker had informally selected/recommended her, vacancy was canceled, re-posted and given to a white man; circumstances suggest pretext/discrimination | VA: Selection based on comparative qualifications; Plummer was most qualified | Denied summary judgment — material disputes (including Vasser’s testimony vs Walker’s) permit a jury to infer pretext and discrimination |
| Non-selection for Regional Manager — race discrimination | Vasser: extensive procedural irregularities, pre-selection of Figueroa, favoritism/cronysm, OIG report undermines Batres’s qualifications-based rationale | VA: Nonselection based on lack of qualified applicants; reclassification and restricted area were legitimate efforts to obtain stronger candidates | Denied summary judgment — evidence of pretext (OIG findings, early assistance, panel composition, rewritten PD) sufficient for a jury to infer discriminatory motive |
| Non-selection for Regional Manager — retaliation (for EEO activity) | Vasser: VA had her EEO complaints in mind when maneuvering to place Figueroa to avoid scrutiny; discussions referenced applicant who had filed complaints | VA: Actions were nondiscriminatory and aimed at finding qualified leader; favoritism (if any) not equivalent to retaliation | Denied summary judgment — factual record allows reasonable jury to find retaliatory motive given timing, awareness of complaints, and irregular process |
| Summary judgment standard / burden | Vasser: evidence attacking VA’s explanations is enough to get to jury; credibility questions favor plaintiff at summary judgment | VA: asserted legitimate nondiscriminatory reasons; plaintiff’s evidence insufficient or shows only favoritism, not discrimination | Court: At summary judgment courts ask whether reasonable jury could infer discrimination/retaliation from all evidence; here genuine disputes preclude summary judgment |
Key Cases Cited
- Anderson v. Liberty Lobby, 477 U.S. 242 (summary judgment standard and credibility/inference principles)
- Scott v. Harris, 550 U.S. 372 (summary judgment evidence standard)
- Celotex Corp. v. Catrett, 477 U.S. 317 (movant’s initial burden on summary judgment)
- Baloch v. Kempthorne, 550 F.3d 1191 (Title VII adverse action requirement)
- Holcomb v. Powell, 433 F.3d 889 (Title VII retaliation elements; proving motive)
- Brady v. Office of Sergeant at Arms, 520 F.3d 490 (prima facie inquiry often unnecessary at summary judgment)
- Jones v. Bernanke, 557 F.3d 670 (pretext and summary judgment framework)
- Allen v. Johnson, 795 F.3d 34 (evidentiary significance of rebutting employer’s explanation)
- Morris v. McCarthy, 825 F.3d 658 (consideration of all evidence attacking employer’s rationale)
- Aka v. Washington Hosp. Ctr., 156 F.3d 1284 (when comparative qualifications permit inference of discrimination)
- Hamilton v. Geithner, 666 F.3d 1344 (procedural irregularities and qualifications comparisons at summary judgment)