Nina Shahin, Pro Se, Dover, Delaware. Plaintiff.
Aaron R. Goldstein and Laura L. Gerard, Deputy Attorneys General, Delaware Department of Justice, Wilmington, Delaware. Attorneys for Defendants.
STARK, U.S. District Judge
Plaintiff Nina Shahin ("Plaintiff) filed this action against Defendants the State of Delaware ("the State") and Office of Management and Budget ("OMB") ("together Defendants") alleging employment discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 629, et seq. (D.I. 2) The Court has jurisdiction pursuant to 28 U.S.C. § 1331. Presently before the Court are the parties' cross-motions for summary judgment (D.I. 71, 73), as well as Plaintiffs motion to hold witness D. Davis in contempt (D.I. 56) and motion for sanctions (D.I. 77). For the reasons that follow, the Court will grant Defendants' motion and will deny Plaintiffs motions.
II. PROCEDURAL BACKGROUND
Plaintiffs charge of discrimination, dated April 6, 2009, asserts that Defendants discriminated against her by reason of national origin (Ukrainian) and age (over 40), and retaliated against her for previously filing a charge of discrimination, when they did not interview or hire her for the position of financial investment program specialist. (D.I. 2 Ex.) The charge states that there was no further contact after Plaintiff received a letter that her application had been received and she met qualifications. The notice of right to sue is dated September 15, 2010, and Plaintiff filed her complaint on November 9, 2010.
The Complaint alleges that "OMB failed to notify [Shahin] of the results of her application for the position of financial investment program specialist... because [Shahin] spearheaded her husband's correspondence with the OMB about violations of the provisions of federal law regarding his pension plan with the State of Delaware at that time." (Id. at ¶ 10)
On January 9, 2012, the Court entered a Scheduling Order and later, on October 9, 2012, amended the deadlines, setting a discovery deadline of December 31, 2012 and a dispositive motion deadline of January 13, 2012. (D.I. 18, 50) Plaintiff sought to depose several individuals as part of the discovery process, including Demetrius Davis ("Davis"), a former employee of the State of Delaware. Shahin was unsuccessful in her attempts to subpoena Davis to appear for her deposition and filed a motion (D.I. 56) to hold Davis in contempt of court pursuant to Fed.R.Civ.P. 45(e). In the meantime, the parties filed cross-motions for summary judgment. (D.I. 71, 73) Next, on February 28, 2013, Shahin filed a motion for sanctions (D.I. 77) pursuant to Fed.R.Civ.P. 11(b) against defense counsel for "lying to Court, misrepresenting facts and circumstances related to the Plaintiffs application and her qualifications related to the position of financial investment program specialist and filing their motion for summary judgment without having any proper factual or legal basis with a sole intention to harass and intimidate the Plaintiff which is the act of discrimination by definition."
III. FACTUAL BACKGROUND
In October 2008, the Office of the State Treasurer advertised an opening for the position of financial investment program specialist, with a closing date of October 30, 2008. (D.I. 72 Ex. E at Visalli Ex. 1; D.I. 75 Ex. A2) The position was summarized as "responsible for the daily administration of the State's Defined Contribution Plans, the 457 Deferred Compensation Plan and the 403b Plan." (Id.) The announcement stated that applicants must have education, training and/or experience demonstrating competence in each of the following areas: (1) experience in financial analysis, which includes compiling, analyzing and interpreting financial data to ensure effective and efficient accounting of funds or to make projections for financial planning;(2) experience in presenting or facilitating workshops, seminars or educational sessions; (3) experience in interpreting laws, rules, regulations, standards, policies, and procedures for defined contribution plans such as 457, 403(b), or 401(a); (4) experience in using an automated financial management information system to enter, update, modify, delete, retrieve/inquire, and report on data; and (5) knowledge of investment options and methods. (Id.)
During the relevant time period, Ann Visalli ("Visalli") held the position of Deputy/ Principal Assistant with a working title of Deputy Treasurer. (D.I. 72 Ex. E at 2) Visalli explained the selection process as follows: "when a position becomes vacant, there's a request made by the hiring agency. In this case it would be the Treasurer's Office, and I would approve that request to fill the position. The position is posted; people apply for the position. The HR section of the OMB reviews applicants for qualifications and nonqualifications, and typically will give you a list of thirty or so candidates that meet the minimum qualifications for the job. Then we, meaning the Treasurer's Office, would receive a list of candidates and we would schedule some level of interviews based on the applications that we received." (D.I. 72 Ex. E at 3- 4; D.I. 75 Ex. at A19-20) Not all candidates that meet the minimum qualifications are interviewed. (D.I. 72 Ex. E at 9; D.I. 75 Ex. A22) Shahin applied for the position on October 30, 2008. (D.I. 75 Ex. A2; D.I. 77 Ex. A) Shahin has two Master of Science degrees, one in taxation and one in accounting. (D.I. 14 Ex. A) Davis screened the applications and Shahin's name was placed on the certification list for the position. (D.I. 72 Ex. J at Ex. 3; D.I. 74 Ex. A2) Toward the middle to the end of November, 2008, several names, including Shahin's, were forwarded to the attention of the Office of the Treasurer for review. (D.I. 75 Ex. A2)
During this time, Leighann Hinkle ("Hinkle") held the position of Director of Defined Contribution Plans with a working title of Human Resource Manager. (D.I. 72 Ex. F at 2, 5; D.I. 75 Ex. Al 1, A13) When candidates' applications are evaluated, they are compared on a number of factors, not one alone, and are compared to other applications in the pool. (D.I. 72 Ex. E at 9; D.I. 75 Ex. A21) Hinkle reviewed the certification list and selected a number of applicants who had best demonstrated sufficient similar and relevant prior work experience for the position. (D.I. 72 Ex. F at 7; D.I. 75 Ex. A2, A15) Hinkle's selection process included reviewing the application and looking at current job experience to determine if it would be relevant for the day-to-day activities of the job vacancy. (D.I. 72 Ex. F at 8; D.I. 75 Ex. A16) Hinkle stated that, "in order to be qualified for a job, you have to meet the job requirements." (Id.)
Shahin was not selected for an interview, although Hinkle has no specific recollection of Shahin's non-selection. (D.I. 72 Ex. F at 7; D.I. 75 Ex. A2, A15) There were other individuals on the certification list who were not selected by Hinkle for an interview. (D.I. 75 Ex. A1-A2) The Office of the State Treasurer selected five individuals to interview, three male and two females. (D.I. 20 Answer to Interrog. 4) Candidates are brought in for interviews in priority order. (D.I. 72 Ex. E at 9; D.I. 75 Ex. A21)
Hinkle was unaware of Shahin's Ukrainian descent at the time she made the decision that Shahin would not be interviewed. (D.I. 75 Ex. A3) The State of Delaware does not collect information on the national origin of applicants. Nor was Hinkle aware that Shahin "had previously filed Equal Employment complaints of any kind." (D.I. 75 Ex. A3 at ¶10) In addition, according to Hinkle, Shahin's gender had no bearing on the decision not to include her in the interview process. (Id. at ¶11)
Visalli participated in the interview process, as did Hinkle and Jill Ipnar ("Ipnar"), who held the position of Human Resources Manager II. (D.I. 72 Ex. E at 4; Ex. G at 2; Ex. J at Ex. 3; D.I. 75 Ex. A20) Visalli had a role in the approval of the final candidate, and approved all the final paperwork for the hire. (D.I. 72 Ex. E at 3; D.I. 75 Ex. A19) Visalli did not recall seeing Shahin's application. (D.I. 72 Ex. E at 9; D.I. 75 Ex. A22)
Gary Scheidecker ("Scheidecker"), a 42 year old white male of United States of America national origin was hired for the position of financial investment program specialist. (D.I. 20 Answer to Interrog. 1; D.I. 72 Ex. A at 2; D.I. 75 Ex. A23) He held the position from December 29, 2008 until September 2012. (D.I. 75 Ex. A28) Scheidecker has a degree in public service, had taken accounting classes, and had fifteen years of experience in financial services at the time he was hired. (D.I. 72 Ex. A at 6; D.I. 75 Ex. A27, A30-46) He also held a number of securities licenses - including a Series 7 License - which were directly applicable to the job; and, during his career, he had performed almost the same functions as those necessary for the available position. (D.I. 75 Ex. A20, A28) Scheidecker explained that while he had no experience in the taxation of pension plans, it was not required for the position for which he was hired, as the position had nothing to do with pensions but, rather, involved 403(b) defined contribution plans. (D.I. 72 Ex. A at 3, 5; D.I. 75 Ex. A23, A26) According to Visalli, who approved the selected candidate, Scheidecker was "a very highly qualified candidate" based upon his specific work experience. (D.I. 20 Answer to Interrog. 9; D.I. 72 Ex. E at 5; 75 Ex. A20)
Hinkle was involved in an automated letter campaign that advised State of Delaware employees of a change in federal regulations and the need for compliance with the regulations. (D.I. 75 Ex. A2) Shahin's husband, Dr. Mazen Shahin ("Dr. Shahin"), was the recipient of an automated letter. As a result, Dr. Shahin and Hinkle engaged in email correspondence regarding the initial letter. (D.I. 72 Ex. B; D.I. 75 Ex. A3-A9) The exchange of correspondence took place from December 1, 2008 through December 19, 2008. (D.I. 72 Ex. F at Hinkle Ex. 1) Hinkle was unaware that Dr. Shahin was married to Plaintiff. (D.I. 75 Ex. A4) In August 2008, prior to the initiation of ...