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Spence v. Foxx

United States District Court, D. New Jersey

December 30, 2014

REBECCA SPENCE, a/k/a Khadijah Spence, Plaintiff,
HONORABLE ANTHONY FOXX, Secretary of Transportation, Defendant

For Plaintiff: Hyder A. Naqvi, Esq., AHMED NAQVI RODRIGUEZ LLP, New York, NY.

For Defendant: Paul J. Fishman, United States Attorney, By: Irene E. Dowdy, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Camden, NJ.


JEROME B. SIMANDLE, Chief United States District Judge.


Plaintiff Rebecca Spence filed this action for employment discrimination after she was terminated from her position as an analyst at the Federal Aviation Administration (" FAA") Tech Center in Atlantic City, New Jersey less than a year after she was hired. Spence, who is African American and Muslim, alleges that she was fired on the basis of her religion, race, and national origin. She also alleges that the FAA retaliated against her for filing a discrimination complaint with the FAA's Equal Employment Opportunity (" EEO") Office after she was terminated.

In the Complaint filed on July 11, 2011, Spence named Ray LaHood, then Secretary of Transportation; the Department of Transportation (" DOT"); and the FAA as defendants. Spence brought six claims: discrimination on the basis of race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (" Title VII"); retaliation in violation of Title VII; retaliation in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981; and racial and religious discrimination and retaliation in violation of the New Jersey Law Against Discrimination (" LAD"), N.J. Stat. Ann. § 10:5-1, et eq.

In an Opinion dated January 28, 2013 this Court granted Defendant's motion to dismiss with prejudice all claims against the FAA and DOT, as well as the claims brought under § 1981 and the New Jersey LAD. The Court also dismissed without prejudice a hostile work environment claim, to the extent Plaintiff included such a claim in her Complaint, for failure to state a claim, and permitted Plaintiff to file an Amended Complaint within fourteen days to cure the deficiencies noted in the Opinion. Plaintiff did not file an Amended Complaint.

Four claims remain before this Court: discrimination on the basis of race, religion, and national origin in violation of Title VII, and retaliation in violation of Title VII. Secretary of Transportation Anthony Foxx is the sole remaining defendant.[1]

Defendant has moved for summary judgment on all claims. For the reasons explained below, the Court will grant Defendant's motion.


The Court begins with the summary judgment record. Although plaintiff Rebecca Spence argues that several facts are in dispute, a careful examination of the record reveals that the material facts are largely undisputed. Rather, it is the parties' characterizations of the facts that are in dispute.

Rebecca Spence is African American. She is a practicing Muslim, and wears a traditional head covering at all times in public. (Def. Statement of Undisputed Material Facts (" Def. SMF") [Docket Item 46-2] ¶ ¶ 1-2; Decl. of Rebecca A. Spence (" Spence Decl.") [Docket Item 54-1], Ex. A to Naqvi Decl. ¶ 3.)

In the fall of 2009, Spence submitted an online job application for a permanent position as a program analyst at the FAA's William J. Hughes Technical Center (" Tech Center") in Atlantic City. The position was for the Test Standards and Program Assessment Team in the Technical Strategies and Integration Group, of which John Wiley was the Manager. (Def. SMF ¶ ¶ 4-5.)

In the job application, Spence answered " yes" to whether she was claiming a " 10-point veteran preference as the spouse, widow, widower or natural mother of a disabled or deceased veteran." (Appl. of Rebecca Spence (" Spence Appl.") [Docket Item 46-5], Ex. 4 to Dowdy Decl.) Eligibility to claim a veteran's preference is contained in 5 U.S.C. § 3309 and § 2108. Under § 2108(3)(E), the spouse of a disabled veteran is " preference eligible" if the disabled veteran " has been unable to qualify for any appointment in the civil service or in the government of the District of Columbia." 5 U.S.C. § 2108(3)(E). Section 3309 entitles preference-eligible spouses to 10 additional points on an entrance exam into competitive service.

In addition to the statutory provision, the U.S. Office of Personnel Management (" OPM") publishes a guidance called the VetGuide to explain the various veterans' preferences that are available to those seeking positions in the federal civil service. The FAA follows the VetGuide in determining whether candidates for employment may receive a veteran's preference. (Def. SMF ¶ 18.) According to the VetGuide, if a veteran who is disabled due to a service-connected injury cannot use the employment preference for him- or herself, the spouse of the disabled veteran may be eligible for the preference. However, the VetGuide states that the spouse may not receive the preference " if the veteran is living and is qualified for Federal employment." (Def. SMF ¶ 21; U.S. Office of Personnel Management, VetGuide (" OPM VetGuide"), Ex. 1 to Dowdy Decl. [Docket Item 46-5], at 9.) The VetGuide lists three circumstances in which a veteran is presumed " disqualified for a Federal position" and cannot use the preference themselves:

Such a disqualification may be presumed when the veteran is unemployed and
o is rated by appropriate military or Department of Veterans Affairs authorities to be 100 percent disabled and/or unemployable; or
o has retired, been separated, or resigned from a civil service position on the basis of a disability that is service-connected in origin; or
o has attempted to obtain a civil service position or other position along the lines of his or her usual occupation and has failed to qualify because of a service-connected disability.

(OPM VetGuide, at 9.) The VetGuide further states that the derived preference " may be allowed in other circumstances but anything less than the above warrants a more careful analysis." (Id.)

It was this derived preference for which Spence claimed eligibility in her job application. The FAA's Human Resources office received a total of 59 online applications for the position, which included applications from both internal and external candidates. The position was available to candidates at three Grades/Levels: Grade/Level 7, Grade/Level 9, and Grade/Level 11. All internal candidates who met the minimum qualifications for each Grade/Level were referred to managers for additional screening. But only the external candidates who were qualified for the position and who had claimed a veteran's preference on their application were referred. (Def. SMF ¶ 16.) Spence, an external candidate, was referred because she met the minimum qualifications for the position and had checked that she was eligible for a veteran's preference. She was one of two external candidates referred for the position at Grade/Level 11. Approximately four other candidates were placed on the external referral list for the other grades. (See external referral lists, Exs. 8-10 [Docket 46-6].) Because Spence claimed a 10-point derived veteran's preference on her application, she was considered a Priority Group II candidate. The other candidate at Grade/Level 11, a veteran who claimed a service-connected disability rating of 30 percent or more, was classified as a Priority Group I candidate. (Def. SMF ¶ 26.)

Spence was chosen for the program analyst position in September 2009. In October 2009, sometime after she received a formal offer of employment, Spence met with Jan Edwards, a specialist from the Human Resources Office and discussed the outstanding documentation she needed to support her derived veteran's preference claim. (Def. SMF ¶ 33-34; Decl. of Jan Edwards (" Edwards Decl.") [Docket Item 46-3] ¶ 27.)

At the meeting, Edwards asked Spence for two documents: a certificate of discharge from active service from the Department of Defense, which serves as proof that her husband was a veteran, and a letter from the Department of Veterans Affairs (" VA") showing that her husband had suffered a service-connected injury and indicating the percentage of his disability. (Edwards Decl. ¶ 28.) Spence provided the certificate of release but told Edwards that she was still waiting for a response from the VA regarding her husband's disability rating. (Def. SMF ¶ 36; Edwards Decl. ¶ 28.) The parties agree that Spence never told Edwards that her husband was 100 percent disabled. (Pl. Supplemental Statement of Facts (" Pl. Supp. SMF") [Docket Item 53] ¶ 5; Def. Resp. to Pl. Supplemental Statement of Facts (" Def. Resp. to Supp. SMF") [Docket Item 56-1] ¶ 5.)

Also at the meeting, Edwards told Spence that she needed to fill out a Standard Form 15 (" SF-15"), also known as an Application for 10-Point Veteran Preference, which Spence did. (Def. SMF ¶ 37; Edwards Decl. ¶ 30.) The SF-15 requires spouses claiming a 10-point derived veteran's preference to provide a VA disability rating letter, which Edwards had already asked for. The form also required Spence to answer several additional questions about her husband's employment history as documentation of her husband's inability to work. (Ex. 16 to Dowdy Decl.) In response to the additional questions, Spence marked that her husband was not currently working, that he had never been employed by the federal civil service, and that he had never resigned from, been disqualified for, or separated from a federal civil service position because of a service-connected disability. She also marked that her husband was not receiving a civil service retirement pension. (Id.)

The parties dispute some of what Spence said to Edwards during that meeting. According to Defendant, Spence explained to Edwards that her husband had served in the Air Force and was recently separated from his military service due to a service-connected injury. Spence also told Edwards that her husband was unemployed and unable to work due to his injury. (Def. SMF ¶ 34; Edwards Decl. ¶ 27.) Spence claims, and Defendant disputes, that in addition, Spence specifically told Edwards that her husband had attempted to apply for other civilian jobs, including desk jobs, and had not been able to obtain any employment, federal or otherwise. (Pl. Supp. SMF ¶ 6.)

In addition, Spence brought in a copy of a Special Order AR-143 from the New Jersey Air National Guard (" NJANG").[2] The Special Order noted that Spence's husband had been honorably discharged in June 2009 " from the NJANG and as a member of the Air Force Reserve, " and was relieved from his assignment with the 177th Aircraft Maintenance Squadron. It also ...

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