Debra Clark GORDON, Plaintiff, v. OFFICE OF THE ARCHITECT OF THE CAPITOL, Defendant.
Civil Action No. 09-1262 (RBW)
United States District Court, District of Columbia.
March 8, 2013
Finally, the Secretary rightly emphasizes that that Mr. Coleman was completely unaware of Burton‘s prior EEO activity at the time of his decision to select Mr. Clemmer for the position instead of her—indeed, Burton expressly concedes as much. (Joint Facts at ¶ 78). The D.C. Circuit has held that “supervisors could not have retaliated against [a plaintiff] unless they had knowledge of [her] protected activity.” Jones, 557 F.3d at 679; see also Pollard v. Quest Diagnostics, 610 F.Supp.2d 1, 31 (D.D.C.2009); Henderson v. Rice, 407 F.Supp.2d 47, 52 (D.D.C.2005). Insofar as there is no dispute that Mr. Coleman was the selecting official for this position, and no dispute that he was entirely unaware of Burton‘s underlying protected activity, her retaliation claim with respect to this position falls short on these grounds as well.20
CONCLUSION
For the foregoing reasons, the Court concludes that the Secretary‘s Motion to Dismiss in Part will be DENIED, and that the Secretary‘s Motion for Summary Judgment will be GRANTED IN PART and DENIED IN PART. An appropriate Order accompanies this Memorandum Opinion.
Wyneva Johnson, Darrell C. Valdez, U.S. Attorney‘s Office, Washington, DC, for Defendant.
MEMORANDUM OPINION
REGGIE B. WALTON, District Judge.
The plaintiff, Debra Clark Gordon, brings this action against her employer, the Office of the Architect of the Capitol, pursuant to
I. BACKGROUND
The following facts are undisputed unless otherwise noted.2 The plaintiff, an African American female, applied for the position of Supervisory Secretary with the defendant, her employer. Def.‘s Facts ¶ 1; Pl.‘s Facts ¶ 1. One of the plaintiff‘s superiors, Robin Morey, was the selecting official for the position. Def.‘s Facts ¶ 20; Pl.‘s Facts ¶ 20. Another superior, Taxiarxis Tzamaras, participated in the interview process with Morey, and an independent observer was also present. Def.‘s Facts ¶ 20; Pl.‘s Facts ¶ 20. Morey created the interview questions for the position and asked the same questions of the plaintiff and five other applicants. Def.‘s Facts ¶ 21; (citing Def.‘s Mem. Exhibit 7 (“Morey Dep.“) at 32-33); see Pl.‘s Facts ¶ 21 (stating that the plaintiff neither agrees with nor disputes this fact). During the job selection process, the plaintiff did not hear anyone make any racially derogatory comments, and concedes that she “could not answer whether [Morey], the selecting official, discriminated against her.” Def.‘s Facts ¶¶ 5-7; Pl.‘s Facts ¶¶ 5-7. Morey eventually chose Christine Camera, a Caucasian female, rather than the plaintiff, for the Supervisory Secretary position. Def.‘s Facts ¶ 1; Pl.‘s Facts ¶ 1.
Regarding his decision, Morey explained that after reviewing the applications and interviewing the candidates, he chose Camera because of her “management experience... on the private industry side,” Morey Dep. at 36, her “very strong sense of... security,” id. at 36-37, and the fact that her interview responses “went into detail” using “specific examples, experiences that she had at her other employment on how to deal with [client service] matters, [and] how to ensure confidentiality,” id. at 61-62. He stated that the plaintiff, on the other hand, lacked “[a]ny ability to communicate her experience” in her interview and gave only “very short answers” without “any elaboration.” Id. at 40-41. Morey perceived the plaintiff‘s responses to the interview questions as “really inadequate and not responsive to the question.” Id. at 51-52. Furthermore, Morey said that the plaintiff exag-
The plaintiff agrees that her answers to the interview questions “didn‘t come out right.” Def.‘s Facts ¶ 22; see Pl.‘s Facts ¶ 22. However, she contends that her interview responses were not indicative of her abilities, Pl.‘s Facts ¶ 22, and that she was generally very well-qualified for the position, id. ¶¶ 22, 24-26. She points out that at the time of her application, she had been employed by the defendant for twelve years and held a position one grade below the Supervisory Secretary position, see Pl.‘s Mem. at 2, whereas Camera had only held a position with the defendant for five months, and Camera‘s selection represented “a promotion of four grades,” Pl.‘s Facts ¶ 26. She vigorously contests Morey‘s assertion that her application contained inaccuracies. Id. ¶¶ 29-31. Moreover, she states that Morey took none of the same pains to verify the claims in Camera‘s application. Id. ¶¶ 23, 25, 27, 29-33.
The plaintiff testified during her deposition that on January 28, 2008, she overheard Taxiarxis Tzamaras instructing someone else to send an email to several other individuals to tell them that Camera had been selected for the position. Pl.‘s Mem. at 7; see also Def.‘s Facts ¶ 12 (citing the plaintiff‘s deposition3). Two days later, on January 30, 2008, Morey met with the plaintiff and notified her of her non-selection. Def.‘s Facts ¶ 12; Pl.‘s Facts ¶ 12.
The plaintiff made a request for counseling with the Office of Compliance on July 28, 2008. Def.‘s Facts ¶ 13; Pl.‘s Facts ¶ 13. The plaintiff brought this action after the conclusion of the administrative process, alleging that her non-selection was due to her race and that she was subsequently the target of retaliation for her complaint of discrimination. Compl. ¶¶ 5, 24-42.
The defendant filed a motion to dismiss for want of jurisdiction because the plaintiff had not exhausted her administrative remedies, or in the alternative, a motion for summary judgment in its favor. Gordon, 750 F.Supp.2d at 84-85. This Court granted in part and denied in part the motion. Id. at 85. The Court dismissed the retaliation claim “to the extent that the claim is based on alleged retaliation resulting from the plaintiff‘s participation in counseling and mediation” because she had failed to exhaust her administrative remedies as to that aspect of her retaliation claim, and the claim for hostile work environment in its entirety for the same reason. Id. at 93. Regarding the discrimination count, however, the Court held that jurisdiction in this Court was proper because the plaintiff had exhausted her administrative remedies as to this claim, see id. at 87-93, and determined that it could not yet rule on the defendant‘s summary judgment motion because no discovery had been conducted, see id. at 93-94.
Now, at the close of discovery, the defendant renews both its motion to dismiss and its motion for summary judgment. The defendant again contends that this Court lacks jurisdiction over the plaintiff‘s discrimination claim, arguing that the
II. STANDARDS OF REVIEW
A. Motion to Dismiss under Rule 12(b)(1)
A motion to dismiss under
B. Motion for Summary Judgment under Rule 56(a)
Before granting a motion for summary judgment pursuant to
In responding to a summary judgment motion, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials... but... must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second omission in original) (internal quotation marks and citation omitted). Thus, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 (citations omitted).
III. ANALYSIS
A. Jurisdiction
Before turning to the merits of the case, the Court must first address whether it has jurisdiction over the plaintiff‘s claim. Before bringing a claim for violation of the Accountability Act, an employee must first complete counseling and mediation with the Office of Compliance.
As the Court noted in its earlier opinion, Gordon, 750 F.Supp.2d at 90-91, the relevant case law5 reveals two methods for calculating the limitations period: (1) the “notification rule” expounded in Delaware State College v. Ricks, 449 U.S. 250 (1980); and (2) the “federal discovery rule.”6 Under the
In the absence of evidence to the contrary, the Court must apply the Ricks rule. The discovery rule is a rule of “federal common law,” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990), which predates the Supreme Court‘s decision in Ricks, see McWilliams, 658 F.2d at 328 n. 1. The rule is thus subject to modification by the Supreme Court, and must be deemed replaced by, or incorporated into, the Ricks holding. Indeed, other Circuits have already concluded that the two rules are, in fact, identical. See Cada, 920 F.2d at 450 (“The discovery rule is implicit in the holding of Ricks that the statute of limitations began to run ‘at the time the tenure decision was made and communicated to Ricks.‘“) (citing Ricks, 449 U.S. at 258) (original emphasis); McWilliams, 658 F.2d at 328 n. 1 (“We perceive no difference between the Ricks formulation and our pre-Ricks [discovery] rule.“). To the extent the two rules differ, this Circuit has indicated a preference for the Ricks formulation. Though the Circuit has never decided the question directly, it has applied Ricks in cases involving statutes incorporated by the Accountability Act. See Crandall v. Paralyzed Veterans of Am., 146 F.3d 894, 896 (D.C. Cir. 1998) (applying Ricks to claims brought under § 504 of the Rehabilitation Act of 1973); Currier v. Radio Free Europe/Radio Liberty, Inc., 159 F.3d 1363, 1366-67 (D.C. Cir. 1998) (applying Ricks to claims brought under Title VII). The Court will therefore be guided by Ricks for assessing when the limitations period commenced in this case.
The Ricks rule resists clearly-defined standards, and its application must be considered afresh in each case. See Ricks, 449 U.S. at 258 n. 9
Still, cases following Ricks do suggest that the communication to the plaintiff must meet at least some minimum formality requirements before it is deemed to trigger the running of the limitations period. First, courts must focus on the employer‘s action, not on the employee‘s subjective beliefs. See Cada, 920 F.2d at 449 (“The statute of limitations does not begin to run until the defendant takes some action, whatever the plaintiff knows or thinks.“) (emphasis added); see also Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d Cir. 2000) (noting that in discriminatory discharge cases, the limitations period begins on “the date that the employer gives definite notice of that decision to the employee“) (emphasis added); Crandall, 146 F.3d at 896 (limitations period began “when [the plaintiff] was notified that his employment was terminated“) (emphasis added); Murphy v. PricewaterhouseCoopers, LLP, 580 F.Supp.2d 16, 25 (D.D.C. 2008) (limitations period begins “when the ‘plaintiff is given unequivocal notice’ “) (emphasis added). Second, the action carries official trappings, which is often communicated in written form. See Ricks, 449 U.S. at 253 n. 2 (official letter from the President of the Board of Trustees of the employer college); Saunders v. Dist. of Columbia, No. 02-1803, 2005 WL 3213984, at *2 n. 2 (D.D.C. Oct. 25, 2005) (“discharge letter” from Director of Human Resources); McCants v. Glickman, 180 F.Supp.2d 35, 37 (D.D.C. 2001) (“letter informing [the plaintiff] of his non-selection“). Finally, the communication to the plaintiff is made by someone with sufficient authority to render the decision definite. See Ricks, 449 U.S. at 262 (communication by President of Board of Trustees after “the tenure committee had twice recommended that Ricks not receive tenure; the Faculty Senate had voted to support the tenure committee‘s recommendation; and the Board of Trustees formally had voted to deny Ricks tenure“); Gibson, 2002 WL 32713321, at *2, *4 (plaintiff informed of his non-selection by selecting official); Thompson v. Capitol Police Bd., 120 F.Supp.2d 78, 80 (D.D.C. 2000) (communication by “Deputy Chief“).8
Accordingly, the Court finds that the comment overheard by the plaintiff does not constitute official notification sufficient to commence the running of the statute of limitations period, and that the plaintiff‘s request for counseling with the Office of Compliance 180 days after receiving official notification of her non-selection on January 30, 2008 was therefore timely. Having concluded that it has jurisdiction, the Court turns now to whether the plaintiff‘s employment discrimination claim survives the defendant‘s summary judgment motion.
B. Summary judgment
Under the Accountability Act, “personnel actions affecting covered employees shall be made free from any discrimination based on race, color, religion, sex, or national origin, within the meaning of section 703 of the Civil Rights Act of 1964.”
Claims of discrimination under the Accountability Act are analyzed under the familiar three-part framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 492-94 (D.C. Cir. 2008). Under this framework, the plaintiff bears the initial burden of “establish[ing] a prima facie case of discrimination,” McDonnell Douglas, 411 U.S. at 802, by providing proof of “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination,” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002) (citations omitted). “If the plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant employer to produce ‘evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.‘” Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)). Once “the employer offers a non-discriminatory justification for its actions, the McDonnell Douglas framework falls away,” Vickers v. Powell, 493 F.3d 186, 195 (D.C. Cir. 2007), and the burden shifts back to the plaintiff to show that the employer‘s proffered reason is merely “pretextual,” and designed to “shield[] discriminatory motives,” Jackson, 496 F.3d at 707 (citation omitted).
The plaintiff concedes that she has produced no direct evidence of a discriminatory motive, Pl.‘s Facts ¶ 4, and therefore relies on indirect evidence demonstrating that the proffered reason for Camera‘s selection is pretextual, id. When indirect evidence is the predicate for proving a claim of discrimination, “[e]vidence indicating that an employer misjudged an employee‘s performance or qualifications is, of course, relevant to the question whether its stated reason is a pretext masking prohibited discrimination,” but courts “may not ‘second-guess an employer‘s personnel decision absent demonstrably discriminatory motive.‘” Fischbach v. Dist. of Columbia Dept. of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (citations omitted). “The issue is not ‘the correctness or desirability of [the] reasons offered’ ... [but] whether the employer honestly believes in the reasons it offers.” Id. (alterations in original) (citations omitted).
Proof that a non-selected job applicant had a “stark superiority of credentials” may raise an inference of discrimination. Stewart v. Ashcroft, 352 F.3d 422, 429-30 (D.C. Cir. 2003). The requirements to raise this inference, however, set a high bar for a plaintiff to meet. In such circumstances, “[i]n order to justify an inference of discrimination, the qualifications gap must be great enough to be inherently indicative of discrimination.” Holcomb v. Powell, 433 F.3d 889, 897-98 (D.C. Cir. 2006) (emphasis added); see, e.g., Lathram v. Snow, 336 F.3d 1085, 1091-92 (D.C. Cir. 2003) (holding that reasonable jury could infer discrimination based on the “wide and inexplicable gulf between the qualifications” of the plaintiff, who had several years of relevant experience, and the selectee, who was “an unemployed former journalist” with almost no relevant experience at the time of his selection). In contrast, a court “must assume that a reasonable juror who might disagree with the employer‘s decision, but would find the question close, would not usually infer discrimination on the basis of a comparison of qualifications alone.” Jackson, 496 F.3d at 707 (citation and quotation marks omitted). Thus, “differences in qualifications that merely indicate a ‘close call’ do[ ] not get [a plaintiff] beyond summary judgment.” Stewart, 352 F.3d at 430 (“This Court will not reexamine governmental promotion decisions where it appears the Government was faced with a difficult decision between two qualified candidates, particularly when there is no other evidence that race played a part in the decision.“).
First, the plaintiff argues that the many declarations and depositions filed in this case—including declarations from the plaintiff‘s former supervisor, the defendant‘s Chief of the Training Division, and a human resources specialist with knowledge of the plaintiff‘s other job applications, and the deposition of the equal employment specialist involved in the case—were all prepared “post-hoc” and the reasons set forth for hiring Camera instead of the plaintiff were not actually relied on by the selecting official at the time the hiring decision was made. Pl.‘s Mem. at 21-22. The plaintiff is certainly mistaken with regard to at least a few of these documents,9 but even accepting her claim as true, the claim is relevant only to the extent that the defendant relied on these documents. In fact, the defendant‘s proffered reasons stem almost entirely from the personal observations of the selecting official. See Def.‘s Mem. at 14-16 (citing Morey Dep. at 20-21, 24-25, 31-32, 36, 38-41, 48, 52, 54-62). Moreover, the fact that the defendant‘s explanation for its hiring decision was prepared “post-hoc” does not diminish its credibility because without the current litigation, the defendant would have had no reason to explain its decision to hire Camera instead of the plaintiff. See Jackson, 496 F.3d at 709-10 (rejecting the argument that preparation of an explanation for a hiring decision after litigation has commenced “casts doubt on the credibility of that explanation and therefore is evidence of pretext“).
The plaintiff next argues that her job application did not exaggerate her experiences and that, in fact, she was at least as qualified as Camera for the position. Pl.‘s Mem. at 22-32. She notes that while Camera had “familiarity with time and attendance [and] had supervisory responsibilities in her prior job,” the plaintiff had the same experiences in her previous position as a Receptionist Service Officer. Id. at 22-23. Moreover, she contends that while Camera‘s previous position required “discipline and HR coordination, liaison duties, and programmatic duties,” the plaintiff‘s “fully successful” rating on her September, 2008 Mid-Year Performance Evaluation indicates she completed comparable tasks. Id. at 23-24. Furthermore, while Camera had experience handling sensitive security items, the plaintiff “submits her strength in the area of security is unassailable.” Id. at 25. The plaintiff
Furthermore, the plaintiff‘s arguments regarding the credibility of the defendant‘s explanation for its hiring decision focus solely on the qualifications of the respective candidates, offering nothing to counter the defendant‘s reliance on Camera‘s interview performance as a factor in its hiring decision. The plaintiff does not dispute that her responses to the interview panel‘s questions were lacking, see Pl.‘s Facts ¶ 22, but argues that her interview performance “was clearly not indicative of her ability to perform in the workplace as is indicated by her ‘fully successful’ performance rating,” Pl.‘s Mem. at 28. However, the defendant is entitled to rely on a candidate‘s superior interview performance as a rationale for selecting one candidate over another. See Fischbach, 86 F.3d at 1183-84 (“Selecting a pool of qualified candidates based upon their written credentials and then making a final selection based upon personal interviews is an obviously reasonable method of hiring a professional employee.“); Vaughan v. Amtrak, 892 F.Supp.2d 84, 92-94 (D.D.C.2012) (noting that anti-discrimination laws do not prohibit employer from considering “intangible qualities” such as interview performance in making hiring decision and collecting cases). The plaintiff fails to point to any evidence to rebut this reason and reveal it as pretextual, as she must do to survive summary judgment. Vaughan, 892 F.Supp.2d at 93-94 (holding that summary judgment was appropriate because plaintiff failed to rebut the employer‘s proffered reason of his poor interview performance, instead exclusively focusing on his qualifications for the position).
Finally, the plaintiff argues repeatedly that by questioning the experiences listed on her application but not those listed on Camera‘s application, the defendant “is applying a different standard/administrative criteria to the [p]laintiff; an admission of disparate treatment and pretext.” E.g. Pl.‘s Mem. at 24. This argument overstates the steps taken by the defendant to verify the plaintiff‘s application. Neither Camera‘s nor the plaintiff‘s application was subjected to any extended verification process; instead, the inconsistencies noted by the defendant were based on personal observations made by the selecting official during the course of the interview. See Def.‘s Mem. at 15-16 (citing Morey Dep. at 20-21, 24-25, 48, 54-60). The plaintiff‘s previous employment was in the defendant‘s office, “probably 20 feet, 25 feet” away from the selecting official, Morey Dep. at 41-42, while Camera‘s previous positions were with private organizations, id. at 36. That the defendant had greater knowledge of the accuracy of the information included on the plaintiff‘s application
The thrust of the plaintiff‘s arguments is that she was well-qualified for the position for which she applied. However, even if correct, such an allegation is simply not sufficient to support a claim of discrimination under the Accountability Act. The plaintiff having failed to show discriminatory motive in non-selection, the Court must grant the defendant‘s motion for summary judgment.
IV. CONCLUSION
For the foregoing reasons, the Court concludes that the limitations period for the plaintiff‘s claim began on January 30, 2008, and therefore her request for counseling was timely, permitting this Court to exercise jurisdiction over her discrimination claim. However, the Court also concludes that the plaintiff has not offered proof that the reasons offered by the defendant for its hiring decision were pretextual. Accordingly, the Court will deny the defendant‘s motion to dismiss but grant the defendant‘s motion for summary judgment.
SO ORDERED this 8th day of March, 2013.11
REGGIE B. WALTON
UNITED STATES DISTRICT JUDGE
Ronnie NELSON, Plaintiff, v. DISTRICT OF COLUMBIA, Defendant.
Civil Action No. 12-0715 (BAH)
United States District Court, District of Columbia.
March 8, 2013