Laul v. Los Alamos National Laboratories

          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 ...