United States District Court, D. New Mexico
JAGDISH C. LAUL, Plaintiff,
v.
LOS ALAMOS NATIONAL LABORATORIES, Defendant.
MEMORANDUM OPINION AND ORDER
In
DEFENDANT LOS ALAMOS NATIONAL SECURITY, LLC'S MOTION AND
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT (Doc.
No. 58) (Motion), Los Alamos National Security
(LANS)[1] asks the Court to dismiss all of
Plaintiff's claims for alleged violations of the New
Mexico Human Rights Act (NMSA 1978 § 28-1-1 et
seq.) (NMHRA), the Age Discrimination in Employment Act
(29 U.S.C. § 621 et seq.) (ADEA), and Title VII
of the Civil Rights Act of 1964 (42 U.S.C. §
2000e-2(a)(1) (Title VII). See COMPLAINT FOR
EMPLOYMENT DISCRIMINATION AND RETALIATION (Doc. No. 1)
(Complaint). The Motion is fully briefed.[2] In the Complaint,
Plaintiff, who was discharged from employment at LANS in
December 2013, alleges that LANS discriminated against and
retaliated against him in refusing to rehire him for other
positions at LANS. (Compl. ¶ 15.) Because Plaintiff
failed to present evidence that LANS discriminated against or
retaliated against him, the Court will grant the Motion.
I.
STANDARD OF REVIEW
Summary
judgment may be granted if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). When applying this standard, the Court
examines the factual record and reasonable inferences
therefrom in the light most favorable to the party opposing
summary judgment. Applied Genetics Intl, Inc. v. First
Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.
1990). The party seeking summary judgment bears the initial
burden of “show[ing] that there is an absence of
evidence to support the nonmoving party's case.”
Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d
887, 891 (10th Cir. 1991) (internal quotation marks omitted).
Once the movant meets this burden, the non-moving party must
designate specific facts showing that there is a genuine
issue for trial. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 256 (1986). In considering a motion for summary
judgment, the Court's role is simply to determine whether
the evidence proffered by plaintiff would be sufficient, if
believed by the ultimate factfinder, to sustain the claim.
Foster v. Alliedsignal, Inc., 293 F.3d 1187, 1195
(10th Cir. 2002).
At the
summary judgment stage and at trial, federal courts follow
the McDonnell Douglas Corp. v. Green, [3] burden-shifting
approach in assessing discrimination and retaliation claims
under the ADEA, the NMHRA, and Title VII.
II.
BACKGROUND
Plaintiff
is a 78 year old naturalized United States citizen of East
Indian birth. (Compl. ¶ 6.) In 1999, when Plaintiff was
60 years old, LANS hired him as a Safety Basis Analyst (SBA-
3).[4]
(Id. ¶ 5.) At first, Plaintiff received awards,
honors, and “kudos” for his work; however, LANS
terminated Plaintiff's employment on December 6, 2013
after Plaintiff received several negative evaluations and
after Plaintiff unsuccessfully participated in a year-long
Performance Improvement Plan (PIP).[5] The negative evaluations and
disciplinary actions focused on Plaintiff's
unprofessional, disrespectful, and disruptive behavior and
his inability to perform assigned tasks. Laul v. Los
Alamos Nat'l Laboratories, 15 CV 749 JAP/KBM, 2016
WL 9777256, at *5 (D.N.M. Sept. 27, 2016),
aff'd, 714 Fed.Appx. 832, 2017 WL 4772415 (10th
Cir. Oct. 23, 2017) pet. for cert. filed (Laul
I). The PIP focused on “significant deficiencies
in [Plaintiff's] work performance[, ]” including
Plaintiff's “tendency to rely on others too much to
help him complete his work[, ]” and Plaintiff's
failure to exhibit “the amount of understanding of
safety basis issues[.]”Id. at *6-*7 (quoting
2012 performance evaluation). LANS keeps employment
termination letters in an employee's file
indefinitely.[6]
On
January 2, 2014, Richard Marquez, LANS' Executive
Director, informed Plaintiff in an email that despite having
been discharged, he could apply for external positions at
LANS for which he was qualified.[7] (Id. ¶ 10.)
From October 20, 2014 to May 4, 2015, Plaintiff applied for
19 positions[8] at LANS but was not interviewed for any of
the positions. (Id. ¶¶ 13-14.) Plaintiff
alleges that he was “well-qualified” for all of
the positions due to his “strong educational
background, excellent credentials, relevant professional
certifications, and approximately 38 years of experience in
various scientific disciplines.” (Id. ¶
15.)
A. LANS
issues a “Be on the Lookout” (BOLO)
In
early 2014, Plaintiff went to LANS' Occupational Medicine
(Occ. Med.) building and asked to speak to Janet McMillan, a
Certified Occupational Health Nurse at LANS and the wife of
LANS' Director, Charles McMillan. (Mot. Ex. 16, J.
McMillan Dep. 4:5-5:20; 9:14-10:17; Mot. Ex. 17, J. McMillan
Decl. ¶¶ 2, 4.) Plaintiff found Ms. McMillan in a
small triage office near the main lobby and handed her a
picture of himself, Ms. McMillan and Mr. McMillan that was
taken at a holiday event one year earlier. (J. McMillan Decl.
¶ 4, J. McMillan Dep. 9:20- 10:4.) Plaintiff asked to
speak with Ms. McMillan and closed the office door. (J.
McMillan Dep. 10:5-8.) Plaintiff told Ms. McMillan that he
had been unfairly discharged, and Plaintiff asked Ms.
McMillan to take some documents to Mr. McMillan and to tell
her husband to reinstate his employment. (Id.
10:13-17.) Ms. McMillan refused to take the documents and
told Plaintiff to talk to the appropriate people at LANS.
Plaintiff continued to urge Ms. McMillan to take the
documents to her husband. (Id.) After Ms.
McMillan's refusals, Plaintiff raised his voice and
physically approached Ms. McMillan in her “personal
space.” (Id. 11:10-19.) Ms. McMillan testified
that Plaintiff told her that if she did not take the
documents, he would contact the press, and he would
“make things very ugly for me, my husband, and the
laboratory [LANS].” (Id. 11:20-23.) Ms.
McMillan felt threatened by Plaintiff's words and
actions, maneuvered toward the closed door, and opened the
door while saying “I have clients coming and I need to
go now.” (Id. 12:1-8.) Plaintiff followed Ms.
McMillan out to the front desk while repeating the statement
that he would contact the press and make things ugly for the
McMillans and LANS. (Id. 12:15- 15.) Plaintiff then
left the building. (Id. 12:17-20.) Ms. McMillan
reported this incident to her supervisor, Laura Kosky, but
told Ms. Kosky not to file an official report because Ms.
McMillan thought she had given information to Plaintiff that
would help him. (Id. 12:21-25; J. McMillan Decl.
¶ 10.)
On June
30, 2015, Plaintiff again visited the Occ. Med. building.
(Id. ¶ 11.) Ms. McMillan was working in her
private office, and Plaintiff asked the front desk
receptionist to page her. (J. McMillan Dep. 14:10-16.) Ms.
McMillan testified she responded to the page, but
“… when I came around the corner and I saw him,
I instantly recognized him[.]” (Id. 14:19.)
Plaintiff
asked Ms. McMillan if they could go to a “private place
to talk, like my office.” (Id. 15:1-5.) Ms.
McMillan responded
No, I don't think anything that we would be talking about
would be a problem. Sit right down here.… He resumed
his same presentation as before. He said he had not gotten
his job back … and this made me nervous, because if he
didn't get that job back, I didn't know how he would
be able to be in the building, because it's a secure
building and you have to badge in.... And then he had an
envelope, which he said were papers I need to present to my
husband to help him get his job back.
(Id. 15:6-16:4.) Ms. McMillan again refused to take
the documents, and Plaintiff threatened to “make it
very ugly for you.” (Id. 16:8-9.) Ms. Losky
walked into the lobby, and Ms. McMillan called her over.
(Id. 16:16.) One of the health care providers, Wally
Collings also entered the lobby. Mr. Collins testified that
Plaintiff continued to urge Ms. McMillan to take the
paperwork to her husband or Plaintiff would “go to the
press.” (Mot. Ex. 18, Collins Decl. ¶ 4.) Mr.
Collins intervened, asked Ms. McMillan to go to her office,
and escorted Plaintiff out of the building. (Mot. Ex. 18,
Collins Decl. ¶ 6.) Ms. McMillan sent an email
describing this second incident to Richard Marquez, Executive
Director of LANS, and sent a copy of the email to her
husband. (Mot. Ex. 16, J. McMillan Decl. ¶ 16; J.
McMillan 25:25-26:6.)
After
receiving the email, Mr. Marquez informed Michael Lansing,
Acting Principal Associate Director for Operations and
Business, about the incident. (Mot. Ex. 19, Marquez Dep.
22:20-23:8.) On July 1, 2015, Mr. Lansing and the LANS
Personnel Security office issued a “Be on the
Lookout” or BOLO for Plaintiff. (Id.
23:11-16.) LANS' security personnel use a BOLO to alert
officials at LANS' gates that an individual is not
permitted to enter LANS' property, and if the person is
seen on the property, a report should be made to LANS'
security office. (Id. 23:20-25.)
B.
Plaintiff's job applications and LANS' responses
1.
Environmental Positions
a.
Environmental Professional 3 position (IRC 35849)
On
October 8, 2014, LANS posted this position, and Plaintiff
submitted an application for the position on October 20,
2014. (Mot. Ex. 4, Payne Decl. ¶ 3(a).) Patricia
Gallagher, now deceased, was the Environmental Stewardship
Group Leader and the hiring manager for the position.
(Id. ¶ 3.) Ms. Jennifer Payne, the current
Environmental Stewardship Group Leader, was a member of Ms.
Gallagher's hiring team. (Id. ¶¶ 2,
3(b).) Ms. Payne testified that, based on her personal
knowledge as a member of the hiring team and based on a
review of the relevant documents, she determined that Ms.
Gallagher elected not to interview Plaintiff because
Plaintiff did not meet the minimum qualifications for the
position. (Id. ¶ 3(c).) Ms. Payne testified
that Plaintiff lacked experience in maintaining compliance
with the National Environmental Policy Act (NEPA), which was
required for the position. (Id. ¶¶ 3(c),
(d), (k).) The successful candidate, Elizabeth English, a 55
year old Caucasian, had extensive experience developing and
preparing NEPA compliance documents for the Chemistry and
Metallurgy Replacement Project at LANS. (Id. ¶
3(e).)
Ms.
Payne testified that there is no indication in Ms.
Gallagher's records that Ms. Gallagher was aware of
Plaintiff's discharge from LANS or that Ms. Gallagher was
aware of Plaintiff's complaints against LANS for
discrimination. (Id. ¶¶ 3(g), (h).) Ms.
Payne testified that there is no indication that Ms.
Gallagher considered Plaintiff's age, race, or national
origin in making her decision. (Id. 3(i).) Nor was
there any indication that Ms. Gallagher was told not to
interview or hire Plaintiff. (Id. ¶ 3(f).)
b.
Environmental Professional 3 position (IRC 35763)
On
October 9, 2014, LANS posted this position, and Plaintiff
submitted an application for the position on October 21,
2014. (Mot. Ex. 4, Payne Decl. ¶ 3(1).) Again, the
hiring manager was Ms. Gallagher, and Ms. Payne assisted her
and reviewed the documents related to Ms. Gallagher's
decision. (Id. ¶¶ 2, 3.) Ms. Payne
testified that Ms. Gallagher elected not to interview
Plaintiff because she determined that Plaintiff was not
qualified for the position. (Id. ¶ 3(m).) Ms.
Gallagher noted Plaintiff's lack of experience with broad
environmental regulatory compliance oversight particularly
under the Resource Conservation and Recovery Act (RCRA), a
specific requirement for the position. (Id. 3(n),
(t).)
The
successful candidates-James Stanton, Pattie Baucom, and
Victoria Baca-had between 10 and 25 years of experience with
environmental regulatory compliance and RCRA. (Id.
3(o).) Mr. Stanton, Ms. Baucom, and Ms. Baca are younger than
Plaintiff and are not East Indian. (Resp. Ex. A, Laul Aff.
¶ 7.)
Ms.
Payne testified that there was no indication that in making
this decision, Ms. Gallagher was aware of Plaintiff's
previous performance issues at LANS, his discharge, or his
discrimination claims against LANS. (Mot. Ex. 4, Payne Decl.
¶¶ 3(q), (r).)
c.
Environmental Professional 3 position (IRC 37521)
On
February 3, 2015, LANS posted this position, and Plaintiff
submitted an application on February 12, 2015. (Mot. Ex. 4,
Payne Decl. ¶ 3(u).) Patricia Gallagher was the hiring
manager for the position. (Id. ¶ 3.)
Forty-three people applied for the position. (Id.
¶ 3(u).) Ms. Payne, a member of the hiring team,
testified that Plaintiff was not interviewed for this
position because without NEPA experience, Plaintiff was not
the best qualified applicant for the position. (Id.
¶ 3(w).) Randall Reddick was hired for this position
because he had more than 20 years of experience in NEPA
compliance. (Id. ¶ 3(x).) Mr. Reddick is
younger than Plaintiff and is not East Indian. (Resp. Ex. A,
Laul Aff. ¶ 19.)
Ms.
Payne testified that there was no indication that Ms.
Gallagher was aware of Plaintiff's previous performance
issues at LANS, Plaintiff's discharge, or Plaintiff's
discrimination claims against LANS. (Mot. Ex. 4, Payne Decl.
¶¶ 3(y), (z).) There was no indication that Ms.
Gallagher considered Plaintiff's age, race, or national
origin in her decision not to interview Plaintiff for this
position. (Id. ¶ 3(bb).) Nor was Ms. Gallagher
advised by James Tingey or any other LANS employee not to
interview or hire Plaintiff. (Id. ¶ 3(y).)
d.
Environmental Manager 3 position (IRC 37809)
On
March 3, 2015, LANS posted this position, and Plaintiff
submitted an application on March 5, 2015. (Mot. Ex. 11,
Grieggs Decl. ¶ 3.) Anthony Grieggs, Environmental
Manager 4 (Group Leader) in the Environmental Protection
& Compliance Division, was the hiring manager for this
position. (Id. ¶ 2.) Mr. Grieggs received 31
applications for this position. (Id. ¶ 3.)
Plaintiff,
along with several of the other applicants, was not
considered for the position because he “did not have
the experience in environmental management and compliance
that was required for the job posting.” (Id.
¶ 5.) Michael Saladen and Mark Haagenstad were hired
based on their “extensive requisite experience in
environmental management and compliance.” (Id.
¶ 6.) At the time of the hiring decision, Mr. Grieggs
did not know about Plaintiff's previous performance
issues, discharge, or discrimination complaints against LANS.
(Id. ¶¶ 8, 9).) Mr. Grieggs did not
consider Plaintiff's age, race, or national origin when
making the decision. (Id. ¶ 10.) Nor was he
advised by James Tingey or any other LANS employee not to
interview or hire Plaintiff due to his prior performance
issues. (Id. ¶ 7.)
Ms.
Saladen and Mr. Haagenstad are both substantially younger
than Plaintiff and are not East Indian. (Resp. Ex. A, Laul
Aff. ¶ 35.)
e.
Plaintiff's Response
Plaintiff
argues that Ms. Payne's affidavit should be disregarded
because she has no personal knowledge of Ms. Gallagher's
reasons for rejecting Plaintiff. (Resp. at 1-2.) The Court
finds that Ms. Payne's affidavit is based on personal
knowledge because she was a member of the hiring team for
each of the positions.
In his
deposition, however, Plaintiff testified he did not know
whether Ms. Gallagher discriminated against him:
Q. Now tell me, do you believe that … you didn't
get the job because Ms. Gallagher was considering your age or
your race or your national origin?
A. I can't read her mind, but she knows who I am.
Q. You called who?
A. Gallagher knows who I am.
Q. Yeah.
A. And I had reviewed their program, so they know it. And
whether she is thinking of ruling me out on national origin,
race, that is her consideration. I have no way of knowing. I
can't read her mind.
(Mot. Ex. 2, Laul Dep. 158:18-159:6.) Plaintiff asserts that
he not only met the minimum requirements for all four of the
Environmental positions, but was more qualified for the
positions than the candidates who were chosen. (Resp. Ex. A,
Laul Aff. ¶¶ 3, 4, 6, 7, 18, 19, 33, 34.) Plaintiff
maintains that he is “considered a Subject Matter
Expert (SME) in Environmental Regulatory Compliance Programs
including NEPA.” (Id. ¶ 3.) Plaintiff
contends that his education and experience is far superior to
each of the candidates chosen for these
positions.[9]
2.
Research and Development Manager 4 position (IRC 35837)
This
position was located in the Actinide Analytical Chemistry
Group, and was posted on September 23, 2014. (Mot. Ex. 5,
Stark Decl. ¶ 3.) Plaintiff submitted an application for
this position on October 29, 2014. (Id.) David
Morris, the hiring manager, assigned Peter Stark, a Research
and Development Manager 4 (Group Leader) for the Chemistry
Division's Chemical Diagnostic and Engineering Group, to
review and screen applications. (Id. ¶¶
2-3.) Mr. Stark reviewed Plaintiff's application and
concluded that Plaintiff was not the most qualified candidate
for the position because Plaintiff's research skills in
analytical and radiochemistry, an important job
qualification, were inferior to the skills of Anne Schake,
the successful candidate. (Id. ¶¶ 4-6.)
Mr.
Stark testified that at the time he made the hiring decision,
he was not aware of Plaintiff's discharge, performance
issues, or discrimination claims against LANS. (Id.
¶¶ 8-9.) Mr. Stark testified that in making his
decision he did not consider Plaintiff's age, race, or
national origin. (Id. ¶ 10.) Nor was Mr. Stark
advised by James Tingey or any other LANS' employees that
he should not interview Plaintiff due to his age, race,
national origin, past performance issues, or discharge.
(Id. ¶ 7.)
Plaintiff
has acknowledged that Ms. Schake was “well
qualified” for the position. (Mot. Ex. 2, Laul Dep.
194:5-11.) However, Plaintiff contends that he was more
qualified than Ms. Schake: “My cover letter and resume
illustrate my strong technical background with 15 years of
experience in developing various radiochemical separations. I
have written thirty papers on radiochemistry methodologies
that deal with instrumentations and radiochemical
separations. I have written two review articles involving NAA
and radiochemical separations.” (Resp. Ex. A, Laul Aff.
¶ 8.) Plaintiff continued: “Ms. Schake has a Ph.D
in Inorganic Chemistry and a BA in Chemistry, and 20 years of
experience in a nuclear facility. She has listed 42 reports
and publications alone and in collaboration. Ms. Schake has
won six awards and honors. She was a member of professional
organizations and committees.” (Id. ¶ 9.)
Nevertheless, Plaintiff maintains that his educational
background is superior. (Id.)
At his
deposition Plaintiff testified:
Q. She was chosen. That's what it says. Justification for
hire. “How is the selected candidate the most
qualified?” That's what it says; right?
A. Let me read.
Well, I think she seems well qualified because the way I see
it, I think she is, but if you look at my resume, my resume
is also pretty good.
(Mot. Ex. 2, Laul Dep. 194:5-11.) Despite this testimony,
Plaintiff opines that he was not hired because he was East
Indian or because of his age.
3.
Engineer 3/4 position (IRC 36084)
On
October 17, 2014, LANS posted a notice for three engineer
positions, and Plaintiff submitted an application on October
31, 2014. (Mot. Ex. 6, Burnett Decl. ¶ 3.) Mel Burnett
was the hiring manager and reviewed Plaintiff's
application along with 10 other applications. (Id.
¶¶ 3-5.) Mr. Burnett did not interview Plaintiff
because Plaintiff did not have a sufficient level of
experience specific to system engineering. (Id.
¶¶ 5, 11.) Jeffrey Freeburg, Randall Stringfield,
and Jason Apperson were hired for the positions based on
their extensive experience with system engineering.
(Id. ¶ 6.)
Mr.
Burnett testified that he was not aware of Plaintiff's
previous performance issues, discharge, or discrimination
claims against LANS. (Id. ¶¶ 8-9.) Mr.
Burnett testified that he did not consider Plaintiff's
age, race, or national origin when making the hiring
decision. (Id. ¶ 10.) Mr. Burnett testified he
was never advised by James Tingey or any other LANS employee
not to interview Plaintiff for the position. (Id.
¶ 7.)
Plaintiff
claims he was more qualified than those who were hired.
(Resp. Ex. A, Laul Aff. ¶¶ 11-12.) However,
Plaintiff admitted in his deposition that all three of these
candidates were qualified for the position. (Mot. Ex. 2, Laul
Dep. 211:1-212:17.) Plaintiff emphasizes that all three
successful candidates were Caucasians and significantly
younger than Plaintiff. (Resp. Ex. A, Laul Aff. ¶¶
11-12.)
4.
Scientist 2/3 position (IRC 37277)
On
January 15, 2015, LANS posted this position, and Plaintiff
submitted an application for the position on January 23,
2015. (Mot. Ex. 7, Steiner Decl. ¶ 3.) Robert Steiner,
the Team Leader of the Radiochemistry Group in the Chemistry
Division of LANS, was the hiring manager. (Id.
¶¶ 2-3.) Mr. Steiner reviewed Plaintiff's
application materials and elected not to interview Plaintiff
because Plaintiff did not have the requisite experience in
secondary ion mass spectrometry (SIMS). (Id.
¶¶ 4-5, 11.) Travis Tenner was hired for the
position because he had extensive experience in SIMS and in
using magnetic sector SIMS instruments. (Id. ¶
6.)
Mr.
Steiner testified that at the time of the hiring decision, he
did not know about Plaintiff's previous performance
issues, discharge, or discrimination claims against LANS.
(Id. ¶¶ 8-9.) Mr. Steiner testified he did
not consider Plaintiff's age, race, or national origin
when making the decision. (Id. ¶ 10.) Nor was
Mr. Steiner advised by James Tingey or any other LANS
employee not to interview Plaintiff. (Id. ¶ 7.)
Plaintiff
again argues that he was more qualified than the successful
candidate, a younger Caucasian. (Resp. Ex. A, Laul Aff.
¶¶ 14-15.) However, in his deposition, Plaintiff
testified:
Q. Do you have any reason to believe that Mr. Steiner was
motivated not to interview or hire you by your age, race, age
or your national origin? A. He has that information. Whether
he was motivated or not, that is his conscience. He never
called me, said JC, I am not interviewing you because blah,
blah, blah. All I'm saying is he has that information
through my personnel file. This is common sense.
(Mot. Ex. 2, Laul Dep. 429:25-430:8.)
5.
Quality Assurance Positions
a.
Quality Assurance Engineer 4 ...