IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

 

REBECCA SPENCE, a/k/a Khadijah 

Spence, 

 Plaintiff, 

 v. 

HONORABLE ANTHONY FOXX, 

Secretary of Transportation 

 Defendant. 

HONORABLE JEROME B. SIMANDLE 

Civil No. 11-3972 (JBS/AMD) 

OPINION

APPEARANCES: 

Hyder A. Naqvi, Esq. 

AHMED NAQVI RODRIGUEZ LLP 

22 Cortland Street, 16th Floor 

New York, NY 10007 

 Attorney for Plaintiff 

Paul J. Fishman 

United States Attorney 

By: Irene E. Dowdy 

Assistant United States Attorney 

OFFICE OF THE UNITED STATES ATTORNEY 

401 Market Street, 4th Floor 

P.O. Box 2098 

Camden, NJ 08101 

 Attorneys for Defendant 

SIMANDLE, Chief Judge: 

I. INTRODUCTION 

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 

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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 

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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. 

II. SUMMARY JUDGMENT RECORD 

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 

 

1 Because Ray LaHood is no longer the Secretary of 

Transportation, his successor, Anthony Foxx, is automatically 

substituted as the party defendant under Fed. R. Civ. Pro. 

25(d)(1). 

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(“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 

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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 

 is rated by appropriate military or Department of 

Veterans Affairs authorities to be 100 percent 

disabled and/or unemployable; or 

 has retired, been separated, or resigned from a 

civil service position on the basis of a 

disability that is service-connected in origin; 

or 

 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 

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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 

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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.) 

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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 serviceconnected 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 serviceconnected 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 

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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 stated that he 

was entitled to disability severance pay. (Ex. 19 to Dowdy Decl. 

[Docket Item 46-8].) 

Spence was employed at the FAA Tech Center for a little 

under a year. Throughout that time, according to Spence, various 

employees at the FAA made negative comments to her about her 

head covering and religion. (Pl. Supp. SMF ¶ 13.)3 Three of the 

 

2 The parties dispute whether Special Order AR-143 was provided 

to the FAA’s HR office in the fall of 2009 or in July 2010 after 

an internal audit review. (Def. SMF ¶¶ 36, 49; Pl. Counter 

Statement of Facts in Opp. to Def. Mot. for Summ. J. (“Pl. 

Counter SMF”) [Docket Item 53], Resp. to ¶ 36.) However, both 

parties agree that the HR office received Special Order AR-143 

prior to Spence’s termination in October 2010. 

3 Spence listed a little over two dozen incidents in which 

negative comments were made about her head covering or religion. 

The majority of the comments were made by Spence’s co-workers or 

other FAA employees, none of whom Spence alleges played a role 

in the decision to terminate her. (See, e.g., Pl. Supp. SMF ¶ 13 

(five statements by John Wilkes, “FAA FOIA Representative,” 

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comments were made by Spence’s managers. Spence states that John 

Wiley, the manager of the Technical Strategies and Integration 

Group who signed off on her hire, “repeatedly” told her, “They 

don’t like Muslims.” (Id.) John Wiley also commented to her, “It 

was bad enough having one, now there’s two.” (Id.) In addition, 

Spence claims that in June 2010, soon after she was reassigned 

to a new work team under a new supervisor, Isidore Venetos, 

Venetos made a negative comment to Spence about the Quran. 

According to Spence, Venetos called her into his office shortly 

after the reorganization to discuss her duties. During that 

conversation, Venetos told her that purchased a Quran because he 

“just wanted to understand [her] and [her] religion.” (Pl. Supp. 

SMF ¶ 11, 13.) Spence believed that Venetos assumed she was 

Muslim because of her head covering. (Spence Decl. ¶ 12.) 

Venetos did not recall saying this to Spence, but stated that he 

may have mentioned to her in a passing conversation that he had 

bought a Quran after taking a class at NYU on different faiths. 

(Deposition Transcript of Isidore Venetos (“Venetos Dep.”) 

[Docket Item 54-4], Ex. D to Naqvi Decl., at 82:19-84:25.) 

In July 2010, approximately two months before Spence was 

 

statements by “[a] fellow employee,” “[a] union representative,” 

an “FAA personnel representative,” “[f]ellow workmate,” and 

“fellow employees”).) Several other comments were made by 

individuals whom Spence does not identify. (Id. (statements by 

“Joe Komisnaly,” “Bessie Johnson,” and “Bessie L/N/U”).) 

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fired, the HR Office at the Tech Center was audited by an 

internal review team. (Def. SMF ¶ 43.) The audit was the first 

of its kind for the FAA Tech Center. (Dep. of Thomas Wood (“Wood 

Dep.”) [Docket Item 54-6], Ex. F to Naqvi Decl., at 12:2-13:3.) 

The audit team randomly selected a number of personnel actions 

to review, and Spence’s file was among those selected. During 

the course of the audit, the audit team found that Spence’s file 

did not contain adequate documentation of Spence’s eligibility 

for the 10-point derived veteran’s preference. (Def. SMF ¶ 44-

45; Edwards Decl. ¶¶ 36-37; Decl. of Thomas Wood (“Wood Decl.”) 

[Docket Item 46-4] ¶ 4.) 

Edwards learned of the audit team’s finding from her direct 

supervisor, Donna Young-Talley, who directed Edwards to email 

Spence for additional documentation she could give to the 

auditors. (Edwards Decl. ¶ 37.) Spence had received a 

determination letter from the VA three months prior concerning 

her husband’s disability rating, and she gave the letter to 

Edwards. (Def. SMF ¶ 50.) The VA had determined that her husband 

was entitled to compensation for a service-connected disability 

and rated her husband’s disability at 30 percent. (Ex. 20 to 

Dowdy Decl. [Docket Item 46-9].) 

A few days later, Edwards emailed Spence again, noting that 

the letter from the VA showed that Spence’s husband was not 100 

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percent disabled. In her email, Edwards wrote that the HR office 

[did] have the documentation that your husband has a 

service-connected disability, but not evidence that he 

is either (1) 100 percent disabled; OR (2) has 

retired/separated/resigned from a civil service 

position, OR (3) has attempted to obtain a civil service 

position along the lines of his usual occupation and has 

failed to qualify because of his disability. 

 

(Ex. 21 to Dowdy Decl. [Docket Item 46-9].) Edwards copied the 

OPM VetGuide criteria into her email. (Id.) Spence replied that 

she “did not have the documentation noted in [Edwards’] email.” 

(Ex. 22 to Dowdy Decl. [Docket Item 46-9].) 

Shortly thereafter, on July 27, 2010 the audit team sent a 

memorandum summarizing their findings to Thomas Wood, the 

Director of the Human Resource Management Office. Spence’s 

appointment was listed in the “Regulatory Violations” section 

with the following finding: 

Selection of Rebecca Spence for a Management and 

Program Analyst, FG-343-11. Unable to substantiate 

eligibility for 10pt Derived Preference. File does not 

contain evidence of eligibility for spousal 

preference. If no documentation is found, then this is 

an illegal appointment, since there was another 

preference eligible (with a CPS rating) within reach 

on the certificate. 

(Ex. 23 to Dowdy Decl. [Docket Item 46-9].) Around that time, 

Wood met with Spence to discuss her eligibility for the derived 

veteran’s preference. Wood recalled that during this meeting, he 

explained that the audit had found that there was insufficient 

support in her file for the veteran’s preference. He asked 

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Spence “whether her husband had ever held a federal civil 

service position and whether her husband had ever applied for 

one.” Spence replied that he had not. (Wood Decl. ¶ 12; Wood 

Dep., at 30:4-7.) 

Wood believed that the documentation Spence had provided – 

the VA letter rating her husband’s disability at 30 percent, the 

Special Order AR-143, the certificate of release, and the SF-15 

– did not show that Spence qualified for a derived veteran’s 

benefit under the OPM VetGuide criteria. If Spence did not 

qualify for the benefit, she would not have been hired because 

her name would not have been included on the referral list. 

(Def. SMF ¶ 56; Wood Decl. ¶ 13.) Wood believed that if Spence 

could not demonstrate eligibility for the derived preference by 

providing the necessary paperwork, he had no option but to 

terminate her. (Wood Dep., at 31:24-32:3.) Wood had never before 

dealt with an employee who claimed a derived veteran’s 

preference and did not recall other instances of individuals 

receiving such a preference. (Wood Dep., at 14:14-24; 16:13-19.) 

He had also never used the VetGuide before. (Wood Dep., at 

89:17-20.) 

Wood did not receive any other documents from Spence. Two 

months later, September 27, 2010, he gave Spence a termination 

memorandum stating that he proposed to fire her in one week 

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because she did not qualify for the derived veteran’s 

preference. (Ex. 24 to Dowdy Decl. [Docket Item 46-9].) The 

memorandum noted that in order to qualify for the derived 

veteran’s preference, Spence must meet one of the three criteria 

listed in the OPM VetGuide. The letter went onto say that Spence 

did not qualify under the first criteria because the VA letter 

stated that Spence’s spouse was 30 percent disabled and not 100 

percent disabled. The letter continued, 

Further, regarding the other two criteria above, there 

is no evidence that your spouse retired, was separated, 

or resigned from a civil service position or attempted 

to obtain a civil service position or other position 

along the lines of his usual occupation and failed to 

qualify because of a service connected disability. 

Therefore, your original appointment was not in 

accordance with the above regulation. As a result, the 

agency must rectify the erroneous action by terminating 

your appointment. 

(Id.) Spence met with Wood the next week with a union 

representative. According to Plaintiff during the meeting, 

Spence’s union representative told Wood that the OPM VetGuide 

allows for deviation from the criteria and for “other 

circumstances” to be considered in determining an individual’s 

eligibility for derived preference. (Pl. Supp. SMF ¶ 20.) 

However, since Spence was unable to come up with any additional 

paperwork, Wood decided that she should still be fired. In his 

affidavit submitted to this Court, Wood stated that he was the 

sole decision-maker in Spence’s termination and that he did not 

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seek any input from Spence’s managers in making his decision. 

(Def. SMF ¶ 63; Wood Decl. ¶ 19; Wood Dep., at 53:18-20.) 

Venetos also testified that although he was the one who told 

Rebecca the news, the decision was made by HR. (Venetos Dep., at 

31:6-14.) Spence disputes this fact but does not offer any 

evidence contradicting Wood’s affidavit. (Pl. Counter SMF, Resp. 

to ¶ 63.) 

Spence’s termination became effective October 15, 2010. At 

around the time she was fired, Spence, through her union 

representative, told Wood that Spence’s husband held a “dual 

service” position with the Air National Guard as a member of the 

Air Force and also as a technician in the federal civil service. 

(Pl. Supp. SMF ¶ 24; Emails from Gerry Berry, Ex. G to Naqvi 

Decl. [Docket Item 54-7]; Def. Resp. to Supp. SMF ¶ 24.) If 

Spence’s husband had been discharged due to his disability from 

a job that counted as a civil service position, Spence would 

have qualified for the derived preference under the second 

criteria listed the VetGuide. Edwards and Wood tried to confirm 

this fact but were unable to do so. Edwards called the Air Force 

personnel office at least once but did not receive a response. 

(Wood Dep. 30:15-31:11; 55:3-11.) Wood believed, based on his 

experience having a son in a “dual service” position, that a 

Standard Form 50 (“SF-50”) was filed for every personnel action 

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taken in a federal civil service position. He asked Spence to 

bring in an SF-50 documenting her husband’s discharge from the 

civil service position, but Spence did not have it. (Wood Decl. 

¶ 18.) Because HR could not verify that Spence’s husband held a 

dual service position with the Air Force, Wood did not credit 

Spence’s assertion. 

After Spence was terminated from her permanent position, 

she was assigned to a temporary position on the same team two 

weeks later. The position lasted approximately three months 

until February 2011. (Ex. 27 to Dowdy Decl. [Docket Item 46-

10].) At some point, Spence filed a complaint with the Merit 

Systems Protection Board appealing the decision to terminate her 

position and also filed a complaint with the FAA’s Equal 

Employment Opportunity Office. 

According to Spence, Venetos, Spence’s supervisor, had 

acted “increasingly hostile and intimidating” towards her after 

she filed her complaint. (Pl. Supp. SMF ¶ 25; Spence Decl. ¶ 

19.)4

Shortly before she returned to work on the temporary 

 

4 Defendant’s primary response is that the following facts are 

immaterial to Spence’s retaliation claim. (See Def. Resp. to 

Supp. SMF ¶¶ 25-35.) To the extent Defendant fails to make clear 

any dispute with respect to the facts, the Court will deem any 

such fact undisputed for purposes of the pending motion, and 

will address the materiality of these facts in Part III, below. 

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position, Venetos emailed Jan Edwards to ask whether Spence 

could “telework” from home. (Pl. Supp. SMF ¶ 26; Ex. I to Naqvi 

Decl. [Docket Item 54-9]) Venetos did not recall why he proposed 

the teleworking arrangement, but speculated that it might have 

been because Spence no longer had access privileges to the FAA’s 

computers. (Venetos Dep., at 62:22-63:11.) 

 For Spence’s temporary assignment, Venetos asked Spence to 

train a former co-worker, a Caucasian female, to take over her 

duties on the team headed by Venetos. (Pl. Supp. SMF ¶ 28; Def. 

Resp. to Supp. SMF ¶ 28; Venetos Dep., at 22:21-23:8, 72:18-

73:15.) The co-worker, Tammy Lusk, told Spence that she had a 

law degree and no experience related to Spence’s position. (Pl. 

Supp. SMF ¶ 29; Spence Decl. ¶ 21.) Spence was then transferred 

to work on another team. At some point, her new manager, Annie 

Clark, petitioned Venetos and Wood to convert her temporary 

position into a permanent one, but was told by Wood and Venetos 

that that would not happen. (Pl. Supp. SMF ¶ 30; Spence Decl. ¶ 

20.) 

 Although the parties dispute whether Spence received an 

offer of reemployment from the FAA, a closer examination of the 

record shows that no formal offer was ever extended. On February 

1, 2011, a few days before her temporary assignment was to end, 

Spence participated in a mediation session with an EEOC 

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representative and Donna Young-Talley, Edwards’ supervisor who 

was then the Acting Director of Human Resources. (Pl. Supp. SMF 

¶ 32.) Spence states that during the mediation, Young-Talley 

assured Spence that she had the requisite authority to make an 

offer of re-employment, and made an offer which was later 

rescinded to re-hire Spence. (Pl. Supp. SMF ¶ 32-33.) However, 

according to emails from the EEOC representative, Young-Talley 

did not have settlement authority, and had proposed a “tentative 

resolution” during the mediation, subject to approval from the 

General Counsel and Vice President. (Ex. J to Naqvi Decl. 

[Docket Item 54-10], at 2.) The FAA later informed Spence’s EEOC 

representative that they decided not to extend the offer. (Id. 

at 3.) These facts are consistent with Defendant’s statement, 

made in response to Plaintiff’s interrogatory, that no offer was 

ever made to Spence. (Ex. 37 to Dowdy Decl. [Docket Item 56-2] 

(“[D]efendant states that its representatives did not make any 

‘offers,’ verbal or written, to plaintiff in connection with the 

EEO mediation.”) 

 Spence’s temporary assignment ended on February 4, 2011. 

(Ex. 31 to Dowdy Decl. [Docket Item 46-11].) She was not rehired. 

III. ANALYSIS 

A. Standard of Review 

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At summary judgment, the moving party bears the initial 

burden of demonstrating that there is no genuine dispute as to 

any material fact and that they are entitled to judgment as a 

matter of law. Fed. R. Civ. P. 56(a); accord Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). Once a properly supported 

motion for summary judgment is made, the burden shifts to the 

non-moving party, who must set forth specific facts showing that 

there is a genuine issue for trial. Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250 (1986). The Court must review the facts 

and draw all inferences in light most favorable to the nonmoving party, in this case plaintiff Rebecca Spence. Hunt v. 

Cromartie, 526 U.S. 541, 552 (1999). 

The question on summary judgment is whether the evidence 

presents “sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail 

as a matter of law.” Anderson, 477 U.S. at 252. “Where the 

record taken as a whole could not lead a rational trier of fact 

to find for the nonmoving party, there is no ‘genuine issue for 

trial,’” and summary judgment must be granted. Matsushita Elec. 

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) 

(citation omitted). 

B. Discrimination Under Title VII 

The purpose of Title VII of the Civil Rights Act of 1964 is 

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to “assure equality of employment opportunities and to eliminate 

those discriminatory practices and devices which have fostered 

racially stratified job environments to the disadvantage of 

minority citizens.” McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 800 (1973). Towards that end, Title VII prohibits an 

employer from firing, “or otherwise [] discriminat[ing] against 

any individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of such 

individual’s race, color, religion, sex, or national origin.” 42 

U.S.C. § 2000e-2(a)(1). 

Spence brings three claims of discrimination under Title 

VII: discrimination on the basis of race (Second Cause of 

Action), national origin (Third Cause of Action), and religion 

(Fourth Cause of Action). 

A discrimination claim brought under Title VII is analyzed 

according to the familiar burdenshifting approach set out in 

McDonnell Douglas. The plaintiff bears the initial burden of 

setting forth sufficient facts to establish a prima facie case 

for discrimination. To make out a prima facie case of 

discrimination, the plaintiff must show that (1) she is a member 

of a protected class; (2) she was qualified for the position; 

(3) she was subject to an adverse employment action despite 

being qualified; and (4) similarly situated persons who are not 

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members of the protected class were treated more favorably, or 

that the circumstances of the termination give rise to an 

inference of discrimination. Sarullo v. U.S. Postal Service, 352 

F.3d 789, 797 (3d Cir. 2003) (citing McDonnell Douglas, 411 U.S. 

at 802); Abramson v. William Paterson College of New Jersey, 260 

F.3d 265, 281-82 (3d Cir. 2001); Matczak v. Frankford Candy and 

Chocolate Co., 136 F.3d 933, 939 (3d Cir. 1997). 

If a prima facie case is properly established, the burden 

shifts to the defendant employer to proffer some legitimate, 

nondiscriminatory reason for its actions. If the defendant does 

so, the presumption of intentional discrimination disappears but 

the plaintiff may still prevail by showing that the employer’s 

proffered reason was merely a pretext for discrimination and not 

the real motivation for the unfavorable employment decision. St. 

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). To 

survive summary judgment, it is enough for the plaintiff to 

point to “some” evidence by which a factfinder could reasonably 

conclude that the defendant’s proffered reasons were fabricated. 

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). However, to 

discredit the defendant’s reasons, the plaintiff “cannot simply 

show that the employer’s decision was wrong or mistaken, since 

the factual dispute at issue is not whether the employer was 

competent, but whether discriminatory animus motivated the 

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adverse decision. Id. at 765. 

The Court first holds that Spence has not established a 

prima facie case of discrimination on the basis of national 

origin.5 Although Spence asserted a claim of national origin 

discrimination under Title VII, the Court cannot find any 

assertion of Spence’s national origin in the Complaint. The 

record contains no reference to her national origin, nor does it 

suggest that there was discrimination against Spence because of 

her national origin. In addition, Spence makes no argument in 

support of this claim in her brief. The Court will therefore 

grant summary judgment in favor of defendants on Count III. 

Plaintiff’s claims of discrimination on the basis of race 

and religion require a more detailed discussion. There is no 

dispute that Spence has satisfied the first and third prongs of 

the prima facie case. Both parties agree that Spence, an African 

American and practicing Muslim, is a member of a protected class 

and was subject to an adverse employment action. 

Whether Spence was qualified for the position is a closer 

call. Although a plaintiff need not show that she was more 

qualified than other candidates, at the very least she must be 

 

5 Under Title VII, “[t]he term ‘national origin’ on its face 

refers to the country where a person was born, or, more broadly, 

the country from which his or her ancestors came.” Espinoza v. 

Farah Mfg. Co., 414 U.S. 86, 88 (1973).

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as qualified as the other candidates in the pool. See Bennun v. 

Rutgers State Univ., 941 F.2d 154, 171 (3d Cir. 1991) (plaintiff 

who was denied promotion must demonstrate in prima facie case 

that he or she “‘was sufficiently qualified to be among those 

persons from whom a selection, to some extent discretionary, 

would be made.’” (quoting Roebuck v. Drexel Univ., 852 F.2d 715, 

726 (3d Cir. 1988))); Pinckney v. Northhampton Cnty., 512 F. 

Supp. 989, 998 (E.D. Pa. 1981) (holding that plaintiff must show 

that she was as qualified as other candidate in order to satisfy 

the second prong of the prima facie case). 

In this case, it is undisputed that the only external 

candidates who were referred for hiring were those who met the 

minimum qualifications and who were eligible for a veteran’s 

preference. (Def. SMF ¶ 16; Pl. Counter SMF, Resp. to ¶ 16.) It 

is also undisputed that Spence, who was chosen from the referral 

list, met the minimum qualifications of education and 

specialized experience. The question of whether Spence was as 

qualified as the other candidates for the position (and hence 

whether she has met the second prong of the prima facie case) 

turns on whether she was actually eligible for a veteran’s 

preference. 

Although Spence argues that she was entitled to a derived 

veteran’s preference as the spouse of a disabled veteran, the 

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evidence in the record does not support her eligibility claim. 

According to the OPM VetGuide, a spouse of a disabled veteran is 

presumed qualified for the derived veteran’s preference in three 

circumstances: (1) the veteran is rated by the Department of 

Veterans Affairs to be 100 disabled or unemployable; (2) the 

veteran has been separated from a civil service position because 

of his disability; and (3) the veteran has tried to obtain and 

has failed to qualify for a civil service job because of his 

disability. 

Spence has not shown that she falls into any of the three 

categories. Spence’s husband was rated 30 percent disabled by 

the VA, and she therefore did not qualify under the first 

category. Nor did she qualify under the second category because, 

according to Spence, her husband had never held a civil service 

position. On the SF-15 form which Spence submitted shortly after 

she was hired, she checked that her spouse had never been 

employed by the federal civil service and that he had never been 

separated from a federal civil service position because of his 

disability. In July 2010, when Wood asked Spence whether her 

husband had ever held a federal civil service position, Spence 

informed Wood that he had not.6 

 

6 In her opposition, Spence states that in addition to being 

honorably discharged from the Air National Guard Reserves, her 

husband “was also relieved from his assignment at the 177th

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 Spence argues that she qualified for the veteran’s 

preference under the third prong because her husband had tried 

without success to obtain a civil service job as an aircraft 

mechanic following his discharge from the Air National Guard. 

(Pl. Opp’n 12.) For support, Spence cites to the fact that she 

told Edwards when she was first hired that her husband was 

unable to find work due to his injury. (Id.) Spence’s statement 

to Edwards, however, is contravened by other evidence in the 

record which Spence fails to dispute or explain. In the SF-15 

form, Spence checked that her husband had never been 

disqualified for a federal civil service position because of his 

disability. Moreover, in July 2010, Edwards asked Spence for 

 

Aircraft Maintenance Squadron, where he was employed as an 

aircraft mechanic.” (Pl. Opp’n 12.) It is unclear whether Spence 

is arguing that her husband’s position with the Air National 

Guard Reserves also counted as a federal civil service position, 

and that she therefore qualified for the derived preference 

under the second category. To the extent Spence makes this 

argument, the Court must reject it, since Spence does not point 

to any evidence in the record to suggest that her husband’s 

position in the Air National Guard Reserves was also a civil 

service position. Spence references the Special Order AR-143, 

but the AR-143 states only that Spence’s husband was relieved 

from assignment with the Aircraft Maintenance Squadron and 

discharged from the Air National Guard. (Ex. 19 to Dowdy Decl. 

[Docket Item 46-8].) AR-143 appears to be a military order 

signed by a Lieutenant Colonel of the New Jersey Air National 

Guard; nothing in that document suggests that Spence was being 

relieved from a civil service position. Moreover, when Spence 

was asked for additional information to support her union 

representative’s late assertion that her husband held a dual 

military and civil service position with the Air National Guard, 

she was unable to provide any paperwork. 

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additional information to support her eligibility claim. Spence 

had an opportunity then to submit documents showing that her 

husband had in fact applied and been disqualified from civil 

service jobs because of his disability, but she stated that she 

had no documents to provide. In addition, when Wood later asked 

Spence whether her husband had ever applied for a federal civil 

service position, Spence replied that he had not. Spence was 

ultimately unable to produce any paperwork showing that her 

husband had tried and failed to qualify for a civil service 

position because of his disability.7 In light of the evidence in 

 

7 Spence provides no support for her argument that documentation 

was not required to show her qualification under the third 

prong. Spence cites Redus v. U.S. Postal Service, 88 M.S.P.R. 

193 (M.S.P.B. 2001), but that case is inapposite. In Redus, the 

appellant had submitted documentation from the VA that her 

spouse was 100 percent disabled and mentally incompetent. The 

court held that the documentation was sufficient to show that 

the appellant was preference eligible, and no additional proof 

was necessary to qualify under the first prong. Id. at 197-98. 

Redus says nothing about what is required to show eligibility if 

the veteran is not 100 percent disabled, as is the case here, 

and other cases suggest that supporting documentation is 

generally required to prove eligibility for a veteran’s 

preference. See, e.g., Zamot v. Merit Sys. Prot. Bd., 332 F.3d 

1374, 1378-79 (Fed. Cir. 2003) (upholding Board’s finding that 

it lacked jurisdiction to hear case because appellant did not 

provide sufficient documentation proving that he was a 

preference-eligible veteran); Carey v. U.S. Postal Service, 50 

M.S.P.R. 359, 360-61 (M.S.P.B. 1991) (holding that 

administrative judge correctly found that appellant did not 

prove that she was preference eligible when she failed to submit 

documents showing that she received disability compensation, but 

remanding to consider additional evidence). 

Spence argues that because she had proof that her husband 

had been discharged from the Air National Guard as an aircraft 

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the record, Spence cannot establish that she qualifies for the 

veteran’s preference under any of the prongs. She therefore 

cannot show that she is qualified for the position. 

Spence has also not shown that she satisfies the fourth 

prong of the prima facie case. There is no evidence suggesting 

that other individuals not in a protected class were allowed to 

stay on despite a later finding that they did not meet the 

qualifications. Indeed, Wood testified at deposition that he did 

not recall the FAA ever allowing someone hired on a veteran’s 

preference to stay if they did not meet the preference criteria, 

and testified that there were no regulations in place for 

retaining an employee under the veteran’s preference even though 

the preference requirements were not met. (Wood Dep., at 92:9-

24.) Absent evidence of disparate treatment, the Court holds 

Plaintiff has failed to demonstrate a prima facie case of 

discrimination in violation of Title VII. 

 

mechanic due to his injury, there was no need for additional 

documentary proof that he was unable to find other jobs as an 

aircraft mechanic. (Pl. Opp’n 13.) In addition to being 

unsupported, this argument is unpersuasive. That Spence’s 

husband left his job in the military due to an injury says 

nothing about whether he was disqualified from a similar job in 

the civil service. See OPM VetGuide, at 1 (spouse must 

demonstrate that the veteran is disqualified for federal civil 

service employment and therefore unable to use the preference 

for him- or herself). 

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Although the record shows that Spence has not satisfied the 

prima facie case, even if a prima facie case were present it is 

clear that Defendant has articulated a legitimate, 

nondiscriminatory reason for firing Spence, and that reason has 

not been addressed by evidence that the reason is pretextual. 

Wood fired Spence because he believed she was not eligible 

for the veteran’s preference. Spence was chosen from a short 

list of external candidates who were referred for hiring because 

they all claimed a veteran’s preference on their application. 

The internal audit, as discussed above, later uncovered that 

Spence’s file did not contain support for her claim of 

eligibility for a derived veteran’s preference. Because of that, 

the audit team deemed Spence an “illegal appointment” and 

notified HR, which was tasked with taking corrective action. 

Edwards and Wood asked Spence for documents showing that she now 

qualified for a derived preference, but the documents Spence 

provided fell short. The VA letter, which was produced months 

after her hire, showed that her husband was not 100 percent 

disabled. Moreover, Spence’s SF-15 form suggested that Spence 

did not qualify under either the second or third prong because 

she checked that her husband had never been disqualified from 

the civil service and had never been employed by the civil 

service. Spence was unable to provide any evidence to 

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demonstrate otherwise. When Spence’s union representative told 

Wood that Spence’s husband had held a dual military and civil 

position with the Air Force, Edwards called the Air Force but 

did not receive a response. Wood also asked Spence to provide a 

copy of an SF-50 form which is used in federal civil service 

jobs, but Spence could not provide that either. Because Spence 

could not substantiate her claim of eligibility with evidence, 

Wood decided that Spence had to be terminated. 

 Spence attempts to rebut Defendant’s proffered explanation 

in several ways. First, Spence argues that Defendant’s reasoning 

is suspect because Spence did in fact qualify for the veteran’s 

preference. But as the Court has already explained, the record 

does not contain admissible evidence that Spence satisfied the 

criteria. Even if Spence had actually been eligible for the 

preference, the fact that Wood was wrong or mistaken about her 

eligibility is not by itself sufficient to discredit his 

reasoning, “since the factual dispute at issue is whether 

discriminatory animus motivated the employer, not whether the 

employer is wise, shrewd, prudent, or competent.” Fuentes v. 

Perskie, 32 F.3d 759, 765 (3d Cir. 1994). 

Nor does the fact that Edwards and Wood wanted Spence to 

provide supporting paperwork suggest that they acted with 

discriminatory animus. As explained above, Spence’s SF-15 form 

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suggested that she did not meet the criteria for a derived 

veteran’s preference. In addition, this was the first audit for 

the FAA Tech Center, and the audit team had informed Wood that 

Spence was an “illegal appointment.” Wood testified to his 

belief that termination under this circumstance was necessary 

because “we didn’t have the evidence to support the derived 

preference.” (Wood Dep. 61:11-18.) No reasonable jury could 

have found that Wood’s request for documentation was suspect 

under these circumstances, particularly in light of Spence’s 

contradictory statements and the SF-15 suggesting her 

ineligibility. 

Spence argues that the OPM Guidelines required Defendant to 

make an effort to keep her employed by applying to the OPM for 

an exception, and the fact that Defendant did not do so shows 

pretext. (Pl. Opp’n 14-15.) As an initial matter, contrary to 

Spence’s contention, the Guidelines do not mandate employers to 

apply for an exception in the case of an illegal hire. The OPM 

Guidelines on Variations to Staffing Regulations (“OPM 

Guidelines on Variations”) permits the OPM to grant a variation 

from the regulations “whenever precise compliance with [the 

regulations] would impose practical difficulties and unnecessary 

hardship . . . .” (OPM, Variations to Staffing Regulations (“OPM 

Variations”) [Docket Item 54-8], Ex. H to Naqvi Decl., at 5.) 

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Under the section “Variation to Correct Erroneous Appointment,” 

the Guidelines state that an agency “should try to put the 

employee on a legal appointment” if an employee is on an illegal 

appointment, and the OPM will not consider a variation request 

unless the agency has first made extensive efforts to regularize 

the appointment. (Id. at 6.) 

 A reasonable jury could not infer from the evidence in the 

record that Defendant’s failure to apply for an exception in 

Spence’s case was pretext for discrimination. Nothing in the 

record suggests that the failure was anything more than a 

legitimate error based on Wood’s interpretation of the VetGuide 

and the derived veteran’s preference. At deposition, Wood 

testified that he did not have any background in using the 

VetGuide and was unfamiliar with the specific paperwork 

requirements for candidates claiming a veteran’s preference. 

(Wood Dep., at 25:10-26:3.) Wood had never before encountered an 

employee claiming a derived veteran’s preference. He was unaware 

of any rules or regulations that were in place for authorizing a 

veteran’s preference which did not meet the enumerated 

requirements. (Wood Dep., at 92:9-24.) Wood testified that he 

did not know that an exception was possible if Spence did not 

qualify. He was unaware that the FAA could apply to OPM for an 

exception to the regulations. (Wood Dep., at 93:6-18.) 

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Importantly, Spence does not point to any evidence in the record 

which would call Wood’s testimony into question. 

The Court must also reject Spence’s argument that a hostile 

and discriminatory workplace environment motivated the firing 

decision.8 Spence lists roughly two dozen negative comments 

referencing her head covering or her religious beliefs. However, 

the vast majority of those comments were made by co-workers and 

other individuals employed by the FAA. None were made by 

Edwards, Wood, Talley-Young, or anyone on the audit team that 

determined that Spence’s veteran’s preference claim needed more 

support. Moreover, Spence offers no evidence suggesting that HR 

or the audit team was influenced or even aware of the comments 

made by her co-workers. Spence argues that as head of HR, Wood 

would have known about these discriminatory remarks, but Spence 

points to nothing in the record showing that employees had 

complained to HR about discriminatory remarks, or that Wood was 

present when such remarks were made. Nor is there anything in 

the record to suggest that Wood was aware of any racial or 

religious hostility directed towards Spence. 

Three comments came from Spence’s managers. John Wiley, the 

manager who signed off on Spence’s hire, said to her, “[T]hey 

 

8 The Court dismissed Spence’s hostile work environment claim in 

an opinion dated January 28, 2013 [Docket Item 27]. 

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don’t like Muslims,” and “It was bad enough having one, now 

there’s two.” Spence’s direct supervisor, Isidore Venetos, also 

told Spence that he bought a Quran because he wanted to 

understand her and her religion. Even assuming that these 

remarks raise the specter of discrimination, they do not show 

discriminatory animus in Spence’s firing because the evidence 

suggests – and Spence has not shown otherwise – that Venetos and 

Wiley played no role in the decision to fire her. Wood stated 

that he alone decided that Spence had to be let go, and that he 

did not consult with any of Spence’s supervisors in making that 

decision. Venetos also testified that although he was the one 

who told Rebecca the news, the decision was made by HR and 

Venetos had no choice in the matter. Spence does not point to 

anything in the record suggesting that Wood was influenced by 

Venetos and Wiley. 

 Because Spence has not produced sufficient evidence to 

refute Defendant’s explanation for her termination, the Court 

will grant Defendant’s motion for summary judgment on the 

discrimination claims under Title VII. 

C. Retaliation Under Title VII 

Title VII prohibits and employer from discriminating 

against an employee “because [the employee] has opposed any 

practice made an unlawful employment practice by this subchapter 

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. . . .” 42 U.S.C. § 2000e-3(a).

To establish that an unfavorable job action is based upon 

an illegal retaliatory motive in violation of Title VII, a 

plaintiff must first establish a prima facie case of 

retaliation. The plaintiff must show that (1) she was engaged in 

protected activity; (2) she was subject to a materially adverse 

employment action; and (3) there is a casual link between the 

protected activity and the subsequent adverse job action. Moore 

v. City of Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006). 

Under the third element, a plaintiff must link the harassment at 

work to a retaliatory animus. Although the plaintiff need not 

prove that retaliation was the sole reason for an employer’s 

adverse action, he or she must show that the action would not 

have been taken but for his or her protected activity. LeBoon v. 

Lancaster Jewish Comm. Ctr. Ass’n, 503 F.3d 217, 232 n. 8 (3d 

Cir. 2007) (citing Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir. 

2000)). 

The burden-shifting scheme also applies to retaliation 

claims. Once the plaintiff establishes a prima facie case of 

retaliation, the defendant must come up with a legitimate, nonretaliatory reason for its conduct. The plaintiff must then show 

that the employer’s proffered explanation was false, and that 

retaliation was the real reason for the adverse employment 

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action. Moore, 461 F.3d at 342; Sarullo v. U.S. Postal Serv., 

352 F.3d 789, 799-800 (3d Cir. 2003). To survive summary 

judgment, “a plaintiff must produce some evidence from which a 

jury could reasonably reach these conclusions.” Moore, 461 F.3d 

at 342 (citing Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 

1994)). 

 According to Spence, after she filed complaints with the 

EEO Office and the Merit System Protection Board, Defendant 

retaliated against her after she was placed on temporary 

assignment which lasted approximately three months. As evidence 

of adverse action, Spence states that she began to be treated in 

a more hostile manner, that Venetos inquired into whether Spence 

could complete her temporary assignment from home, and that 

Venetos tasked Spence solely with training her replacement. 

Spence additionally states that when she voluntarily transferred 

to another team, Wood and Venetos rejected her new supervisor’s 

application to give her a permanent position. Finally, Spence 

claims that Defendant rescinded a job offer made during an EEO 

mediation session. (Pl. Opp’n 19-20.) 

 The Court agrees with Defendant that a reasonable jury 

would not be able to find in favor of Spence. The record does 

not support a prima facie case of retaliation because Spence has 

not shown a causal link between the protected activity and the 

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alleged retaliatory acts. Although Spence does not state exactly 

when she went to the EEO, a Counselor’s Report from the 

Department of Transportation indicates that she first contacted 

the EEO on November 29, 2010, approximately one month into her 

temporary assignment. (Ex. 35 to Dowdy Decl., at 2.) As evidence 

of retaliation, Spence points to an email from Venetos to 

Edwards asking whether Spence could complete her work from home, 

and to Venetos’ decision to limit Spence’s temporary assignment 

to training her replacement, Tammy Lusk. (Pl. Supp. SMF ¶¶ 26-

28.) But the deposition transcript shows that Venetos had come 

up with Spence’s temporary assignment before or around the time 

Spence began work on November 2, and the email from Venetos 

shows that he had asked about a teleworking arrangement on 

October 28. (Ex. I to Naqvi Decl.; Venetos Dep., at 62-65.) Both 

of these events occurred nearly one month before Spence went to 

the EEO and therefore do not raise an inference of retaliation. 

Nor does Venetos’ hostility towards Spence suggest 

retaliation. Spence admits elsewhere that her relationship with 

Venetos had already deteriorated by the time she notified the 

EEO. For example, in her affidavit, Spence asserts that Venetos 

became “increasingly hostile” “during the time between when in 

September 2010 Mr. Wood first informed me that my appointment 

might be terminated and October 2010 when he finally advised me 

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that there was nothing that could be done to keep me employed.” 

(Pl. Supp. SMF ¶ 15-17.) In her opposition brief, Spence also 

states, “[O]nce it was determined that [Spence] was ‘illegally’ 

appointed to an FAA position, she was treated in a more hostile 

manner.” (Pl. Opp’n 19.) Because Spence has provided no evidence 

showing that Venetos’ hostility increased after she filed her 

EEO complaint, no inference of causation may be drawn. See 

LeBoon, 503 F.3d 217, 233-34 (3d Cir. 2007) (evidence 

insufficient to show causation where employee had strained 

relationship with supervisor during last several months of her 

employment and had not shown that there was a qualitatively 

different relationship with supervisor after she made her 

complaint). 

Spence notes that Venetos and Wood denied a request by 

Spence’s manager in another department, Annie Clark, to convert 

her temporary position with Clark into a permanent one. The 

Court agrees with Defendant that this does not support an 

inference of retaliation or increased hostility. Nothing in the 

record suggests that Venetos and Wood’s refusal to create a new 

permanent position for Spence had something to do with her 

complaint to the EEO. There is no evidence that Venetos, a 

supervisor in another department, and Wood, the Human Resources 

Manager, even had the authority to create a new permanent staff 

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position intended specifically for Spence in another department. 

Nor is there any evidence to suggest that Spence was promised a 

permanent position if she performed well during her temporary 

assignment. Moreover, Spence does not state when Venetos and 

Wood denied Clark’s request; thus no inference may be made based 

on temporal proximity that the denial was due to Spence’s 

complaint to the EEO. See LeBoon, 503 F.3d at 233 (three-month 

delay between protected activity and adverse action, without 

more, cannot create an inference of causation). Since Spence 

does not point to any other evidence which would suggest 

causation, the record is insufficient for a reasonable factfinder to find retaliatory animus. 

As for the offer of reemployment that was later rescinded, 

it too fails to support a claim of retaliation.9 Spence had been 

given a tentative offer of reemployment during the EEO mediation 

process, which was initiated after she had already filed her EEO 

complaint. Spence’s EEO complaint therefore allowed Defendant to 

make an offer of reemployment in the first place. Plaintiff’s 

conclusion that Defendant withdrew an offer in retaliation for 

 

9 Defendant argues that the evidence is inadmissible under 

Federal Rule of Evidence 408(a). However, statements made during 

settlement negotiations are admissible “when offered for another 

purpose,” Fed. R. Evid. 408(b), such as to establish “an 

independent violation (here, retaliation) unrelated to the 

underlying claim which was the subject of the correspondence.” 

Carney v. Am. Univ., 151 F.3d 1090, 1095 (D.C. Cir. 1998). 

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Spence’s EEO complaint does not logically follow when her 

complaint was what prompted the offer of reemployment in the 

first place. There is no other evidence in the record to suggest 

a causal link between Spence’s complaint and the withdrawal of 

the offer. Moreover, Defendant has shown a legitimate, nonretaliatory explanation for the withdrawal, which Spence cannot 

rebut. The emails submitted by Spence as part of the record show 

that Donna Young-Talley, the FAA representative who participated 

in the mediation session with Spence and an EEO representative, 

had offered a “tentative resolution” during the mediation on 

February 1, 2011, which still needed final approval from the 

General Counsel and Vice President of the FAA because “the 

agency did not send participants [to the mediation] with 

settlement authority.” (February 4, 2011 Email from Deborah 

Sherman, Ex. J to Naqvi Decl., at 2.) Three days later, YoungTalley informed the EEO representative that the FAA was “not 

able to come to a resolution.” (Feb. 4, 2011 Email from Donnas 

Young-Talley, id. at 1.) The emails therefore suggest that that 

the tentative offer did not receive final approval from the 

General Counsel and Vice President, which was the reason why it 

was “withdrawn.” 

 Because Spence has not established a prima facie case of 

retaliation, the Court will grant Defendant’s motion for summary 

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judgment on the retaliation claim. 

 

IV. CONCLUSION 

 For the foregoing reasons, the Court will grant Defendant’s 

motion for summary judgment. The accompanying Order will be 

entered. 

December 30, 2014 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE 

 Chief U.S. District Judge 

 

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