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Seward v. Nicholson

August 4, 2006


The opinion of the court was delivered by: J. Leon Holmes United States District Judge


Penny Seward brings this suit pro se under Title VII against her employer, R. James Nicholson, Secretary of the Department of Veterans Affairs, alleging sex discrimination. According to Seward, the Veterans Administration's facility in North Little Rock ("VA") allowed males to apply for higher-graded positions using their veteran's status but failed to allow her to use her veteran's status when applying for higher-graded positions. As a result, Seward alleges that she was not promoted as quickly as she would have been absent the discrimination. Seward seeks promotion to a grade eleven position retroactive to January 1, 1999. Nicholson has moved for summary judgment. For the following reasons, that motion is granted.


A court should enter summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed. 2d 202 (1986). A genuine issue exists only if there is sufficient evidence to allow a jury to return a verdict for the nonmoving party. Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. In deciding a motion for summary judgment, the Court views the facts in the light most favorable to the nonmoving party and draws all inferences in his favor, mindful that summary judgment seldom should be granted in discrimination cases where claims are often based on inferences. Peterson v. Scott County, 406 F.3d 515, 520 (8th Cir. 2005); Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir. 2000) (collecting cases). But see Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 762 (8th Cir. 2004) (Arnold, J., dissenting).


Seward is a twenty-year veteran of the Air Force. In 1999, Seward applied to the VA using her veteran's status.*fn1 The VA can fill available positions in one of two ways. First, it can hire applicants outside the VA using the Delegated Examining Unit, run by the Office of Personnel Management, the federal government's human resources agency. When the VA uses this hiring process, it can give a noncompetitive temporary appointment to any applicant with veteran's status. After the temporary appointment expires, the agency may convert the employment of the applicant with veteran's status to a career or career-conditional appointment.

Second, the VA can fill a position by promoting VA employees using the Merit Promotion Plan. To be eligible for merit-promotion positions, employees must meet the time-in-grade requirements for those positions. A merit-promotion position generally requires at least one year of experience at the next lowest grade. Employees can bypass these time-in-grade requirements by using their veteran's status to apply for merit-promotion positions. Employees applying to merit-promotion positions using their veteran's status, however, go outside the Merit Promotion Plan and are treated as if they are outside applicants. If promoted, they have to serve another probationary period during which they can be more easily terminated.

The VA hired Seward on August 29, 1999, on a provisional basis as a grade five patient services assistant. The form confirming her hiring stated that Seward could be converted to a nontemporary appointment before her provisional appointment expired. On July 16, 2000, Seward was reassigned to human resources as a staffing assistant, a grade five position that was not provisional and had promotion potential. Seward became a grade six on November 5, 2000, and on February 15, 2001, Seward was promoted to a grade seven personnel management specialist. Seward was promoted on February 24, 2002, to a grade nine human resources specialist, the position she currently holds. Additionally, Seward became a grade eleven in February of 2003.

During the time period that Seward received those promotions, Seward applied for four other merit-promotion positions within the VA. At some point when Seward was applying for these four positions, she spoke to Linda Dunlap, a VA staffing assistant, about the possibility of using her veteran's status to apply. Dunlap told Seward that she could not use her veteran's status and had to meet the time-in-grade requirements for any higher-graded positions to which she was applying.

Seward was qualified for the first position, a grade five medical records tech, but Seward rejected it because "it was going to be on the other side." On January 5, 2000, Seward applied for a grade six program support assistant position that required a year of experience in grade five. Seward only had five months in grade five and did not indicate anywhere on her application that she was applying for the position using her veteran's status. Seward was rejected for the position because she did not meet the time-in-grade requirements. Similarly, Seward did not indicate on her application for another grade six position as a program support assistant that she was using her veteran's status, and, in February of 2000, she was rejected for that position because she did not meet the time-in-grade requirements.

In March of 2000, Seward applied for a personnel management specialist position that was listed as a grade nine or eleven and required one year in grade seven. Seward had seven months of experience in grade five at that point. With her application, Seward attached a hand-written note that stated, "I am applying under the conditions set forth in the Vet Guide dated 10-25-99." Seward also attached a page of the VetGuide*fn2 that explains the VA's authority under federal law to use veteran's status to give a noncompetitive temporary appointment to any veteran. Seward was not selected for the personnel management specialist position. The VA had an internal data sheet showing which of the applicants were eligible for that position; on that sheet, Seward's name was listed under the heading "ineligible-did not submit required documentation."

More than a year after Seward was rejected for the position of personnel management specialist, several VA employees were able to use their veteran's status to apply for merit-promotion positions. After leaving military service, Bryan Williams was hired on a thirty-day appointment as a grade five personnel clerk in July of 2000. Williams then applied for a grade seven human resources specialist position on May 29, 2001. Williams did not meet the time-in-grade requirements for the position, but was selected for the position after applying pursuant to his veteran's status. Anne Marie Baker, a female, also applied pursuant to her veteran's status and was selected as a human resources specialist. Williams became a grade nine in October of 2002, and a grade eleven in October of 2003.

Stephen Pettit applied as an outside applicant for a position as a grade five program support assistant using his veteran's status and was hired in August of 2002. Shortly thereafter, Pettit used his veteran's status to apply for a merit-promotion position as a grade six support assistant and was selected for that position in November of 2002. A grade seven specialist trainee position then opened up for which Pettit was interested in applying. He was told, however, that he could not use his veteran's status to apply because the position was an advancement program for VA employees and was restricted solely to VA employees who met the time-in-grade requirements. A few months thereafter, another specialist trainee opening was announced. Pettit asked a staffing assistant, "I can't do this one either because of my time in grade, correct?" The staffing assistant responded, "Correct." Pettit then went to Daniel Peterson, the chief of human resources at the VA. Peterson told Pettit that he could use his veteran's status to apply and anyone who told him otherwise was in error. To correct the error, Pettit was allowed to apply after the closing date of the position but before any decision to hire had been made. Pettit was selected for that position in February of 2003.

Seward filed an EEO complaint on May 1, 2003, alleging that she was discriminated against on the basis of her sex because she was not able to use her veteran's status to more quickly qualify for higher-level jobs. An administrative hearing was held in November of 2004 concerning Seward's complaint. On December 13, 2004, the administrative judge issued his decision in favor of the VA. Seward appealed the administrative judge's opinion; his decision was affirmed on March 10, 2005. Seward's request for ...

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