MEMORANDUM OPINION
Plaintiff Wesley M. Jarmon, Jr., brings this action against Julius G. Genachowski (“defendant”) in his official capacity as Chairman of the Federal Communications Commission (“FCC”), under Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e et seq. Plaintiff claims that defendant violated Title VII by denying him a promotion and by awarding him fewer bonuses and less time-off pay than similarly-situated colleagues on the basis of his race. Plaintiff also claims that defendant retaliated against him for previously filing two Equal Employment Opportunity (“EEO”) complaints. Currently pending before the Court is defendant’s motion for summary judgment on all three claims. Upon consideration of the motion, the response and reply thereto, the applicable law, the entire record, and for the following reasons, the Court DENIES defendant’s motion for summary judgment.
I. Background
Plaintiff, an African-American male, began working for the FCC in 1987 as an auditor at the GS-11 pay level in the Common Carrier Division. Jarmon Application, Pl.’s Ex. 3
2
(“Jarmon Appl.”) at 4;
On April 2, 2004, the FCC published Vacancy Announcement 04-153-TJ, advertising two auditor positions at the GS-15 level in the IHD. See Attach. B to Def.’s Ex. 1 (“Vacancy Ann.”) at 1. This announcement sought two auditors to be “responsible for developing, organizing, and coordinating the most complex and novel [IHD] audit assignments, and in connection with this activity also lead[ ] and coordinate[] the technical work of a team of auditors.” Vacancy Ann. at 2. Plaintiff timely applied for the advertised positions along with several other FCC employees. Green Declaration, Def.’s Ex. 1 (“Green Decl.”) ¶ 5. The FCC convened a ratings panel to evaluate the applications and to determine which candidates should be referred to William H. Davenport, the then-Division Chief of the IHD, for further consideration. Green Decl. ¶¶ 5-6. On September 21, 2004, the ratings panel referred the five highest-scoring applicants to Davenport: (1) plaintiff; (2) Robert Bentley; (3) Constance Hellmer; (4) Patricia Green; and (5) Andy Skadin. Green Decl. ¶¶5-6. Bentley, Hellmer, Green, and Skadin are all white (not of Hispanic origin). Def.’s Statement of Material Facts for Which There is No Genuine Issue (“Def.’s SOF”) ¶ 8.
Davenport was solely responsible for selecting which candidates would be selected for the advertised positions. Davenport Dep., Def.’s Ex. 4 (“Davenport Dep.”) at 12:7-9. To assist him with making that decision, however, he solicited the input of a group of managers. Davenport Dep. at 13:4-7. Davenport indicated that he intended to follow the group’s choice. Davenport Dep. at 14:15-18. Davenport and four other managers in the IHD — Hillary DeNigro, Eric Bash, Trent Harkrader, and Hugh Boyle (collectively, the “selection panel” or “panel”) — interviewed the final candidates in two rounds; the first round with Bash and Harkrader and the second round with Davenport, DeNigro, and Boyle. Davenport Dep. at 21:11-15. None of the panel members were African-American. Def.’s SOF ¶ 10.
After completing the interviews, Davenport and the selection panel met to discuss the candidates and agreed on who they would hire. Davenport Interv., Def.’s Ex. 3 (“Davenport Interv.”), at 26:3-5. On December 17, 2004, Davenport and the selection panel chose Bentley, Hellmer, and Skadin to fill the available positions. 3 Green Decl. ¶ 9.
II. Standard of Review
Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.
See
Fed.R.Civ.P. 56;
Anderson v. Liberty Lobby, Inc.,
III. Analysis
Plaintiff makes three claims in his complaint: (1) defendant denied plaintiffs promotion on the basis of plaintiffs race; (2) defendant gave out bonus pay at a lower rate and fewer time-off awards to plaintiff than to other similarly-situated auditors; and (3) defendant denied plaintiffs promotion in retaliation for plaintiffs prior EEO activity. Am. Compl. ¶¶ 20-33. Defendant seeks summary judgment on all three claims. Def.’s Mem. P. & A. Supp. Mot. Summ. J. (“Def.’s Mem.”) at 1-2. The Court will explore each argument in turn.
A. Claim I: Denial of Promotion
Plaintiffs first claim is that he was unlawfully denied a promotion because of his race. Title VII makes it unlawful for a federal government employer to discriminate “based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). In the absence of direct evidence of discrimination, the Court analyzes a Title VII claim under the traditional
McDonnell Douglas
burden-shifting framework. Under this framework, the plaintiff must first establish a prima facie case of discrimination by a preponderance of the evidence.
McDonnell Douglas Corp. v. Green,
In a Title VII disparate-treatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, nondiscriminatory reason for the decision, the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas. Rather, in considering an employer’s motion for summary judgment or judgment as a matter of law in those circumstances, the districtcourt must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex or national origin?
Brady v. Office of Sergeant at Arms,
any combination of (1) evidence establishing the plaintiffs prima facie case; (2) evidence the plaintiff presents to attack the employer’s proffered explanation for its actions; and (3) any further evidence of discrimination that may be available to the plaintiff, such as independent evidence of discriminatory statements or attitudes on the part of the employer.
Holcomb v. Powell,
In this case, defendant produced a legitimate, nondiscriminatory reason for not promoting plaintiff: namely that his supervisors did not believe that he was one of the three most-qualified candidates for the position.
See
Def.’s Mem. at 11. Accordingly, the Court must determine whether plaintiff has produced sufficient evidence for a reasonable jury to find that defendant’s qualifications-based explanation is pretextual for unlawful discrimination.
Brady,
1. Comparative Qualifications
Contrary to defendant’s assertion that the selectees were more qualified than plaintiff, plaintiff argues that his qualifications were “vastly superior” to those of Hellmer and Skadin. Pl.’s Opp’n at 12.
6
Courts in this Circuit have consistently declined to serve as a “super-personnel department that reexamines an entity’s business decisions.”
Barbour v. Browner,
Plaintiff has a Bachelor’s of Business Administration (Accounting) and is a Certified Government Financial Manager. Jarmon Appl. 2. At the time he submitted his application, plaintiff had more than 25 years of financial accounting and auditing experience, 17 of which were at the FCC. Jarmon Appl. 2-5. Plaintiff had worked his way up from GS-11 to GS-14 and had been a senior auditor at the GS-14 level in the IHD since 2002. Jarmon Appl. 3-4. From 2000 to 2001, plaintiff served as a Chief Financial Officers Council Fellow in the Environmental Protection Agency, and then from 2001 to 2002 he was detailed as an accountant in the FCC’s Office of the Chief Financial Officer. Jarmon Appl. 3-4. In the IHD, plaintiff was a lead auditor on two occasions, each time supervising three other auditors. Jarmon Decl. ¶ 12. Plaintiff consistently received good performance evaluations and feedback, and his ratings during the time period prior to the selection were passing in all areas. Jarmon Decl. ¶ 6; see also Jarmon Empl. Revs. 2002-03 & 2003-04, Pl.’s Ex. 6.
While plaintiffs record is impressive, it is not obvious that plaintiffs qualifications are significantly greater than those of either Hellmer or Skadin. Skadin has a Bachelor’s of Science in Accounting and has been employed by the FCC since 1985. Skadin Application, Pl.’s Ex. 8 (“Skadin Appl.”) at 1-9. At the time of the selection Skadin had been a senior auditor at the GS-14 level since 1994. Skadin Appl. at 1. Moreover, during his time at the FCC, Skadin had supervisory duties on at least six audits. 7 Skadin Appl. at 1-4. Hellmer also has a Bachelor’s of Science degree with coursework in accounting and has been employed by the FCC since 1995. Hellmer Application, Pl.’s Ex. 7 (“Hellmer Appl.”) at 5, 10. At the time of the selection, Hellmer had been a senior auditor in the IHD at the GS-14 level since 2000. Hellmer Appl. at 5. Both Skadin and Hellmer had also received pass ratings in the time period prior to the selection. Skadin Appl. at 13-14; Hellmer Appl. at 18-19. Thus, Skadin and Hellmer had comparable experience to plaintiff.
The relative similarity in the qualifications of plaintiff, Hellmer, and Skadin presents the sort of “close case” in which the Court is required to defer to the employer’s judgment.
See Aka,
2. Other Evidence of Discrimination
A plaintiff attacking a qualifications-based explanation “is of course not limited to comparing his qualifications against those of the successful candidate. The plaintiff can instead seek to expose other flaws in the employer’s explanation” and “can also attempt to show by other means that the explanation was made up to disguise illegitimate bias.”
Aka
i. Evaluation of Candidates
Plaintiff contends that defendant raises undocumented performance issues about him and that defendant’s erroneous statements regarding his leadership and supervisory experience give rise to an inference of pretext. Pl.’s Opp’n at 15, 19-20. To determine whether defendant’s proffered reasons for not promoting plaintiff were pretextual, the relevant inquiry is whether there is evidence that a manager made a statement that is either so erroneous or so inconsistent as to demonstrate that the manager does not honestly believe the reasons put forth for not promoting plaintiff — i.e., that the reasons given were “phony.”
Fischbach v. District of Colum
bia,
In explaining why the panel did not feel that plaintiff was one of the three best qualified candidates, defendant asserts, among other things, that plaintiff did not get along well with others, had poor writing skills, had difficulty complying -with deadlines, proposed audits that made no sense, and lacked leadership skills.
8
Plaintiff argues that these undocumented performance issues either raise a material dispute of fact or indicate pretext. Pl.’s Opp’n at 15. As evidence, plaintiff points to the fact that he has received consistently high marks on performance evaluations and was never disciplined for his performance.
See
Pl.’s Opp’n at 16.
9
Indeed,
While there is some evidence that plaintiff did not get along with other members of the audit team
10
— indeed, plaintiff himself admits that his outspoken attitude had made him “not a favorite” on the team
11
— plaintiffs record is devoid of any evidence supporting defendant’s assertion that plaintiff was a bad writer, did not meet deadlines, and had ideas that made “no sense.” While an employee’s subjective assessment of their own performance is generally not relevant, see Gross
v. Akin Gump, Strauss, Hauer & Feld, LLP,
For instance, in
Hussain v. Principi,
the court found the defendant hospital’s explanation for not promoting plaintiff to Chief of Radiology Service to be sufficient where there were well documented performance issues related to his skills as a radiologist.
By contrast, in this case, defendant has put forth no documentary evidence substantiating its allegations of plaintiffs purported performance deficiencies. Indeed, defendant’s concerns regarding plaintiffs performance and abilities appear to have surfaced for the first time in relation to this lawsuit. From this evidence, a reasonable jury could conclude that “the employer’s stated reason was pretextual and that the true reason was discriminatory.”
Plaintiff also points to an erroneous statement by Davenport regarding his leadership and supervisory experience in support of his argument that the selection panel’s decision was racially motivated. See Pl.’s Opp’n at 19-20. In his EEO interview, Davenport stated that plaintiff, “as far as I can tell, has never supervised any other auditors to my recollection.” Davenport Interv. at 29:1-3. 13 Plaintiff argues that Davenport’s recollection is false — that he had, at the time of the selection, “more than 13 years of experience supervising others and conducting field audits and/or investigations.... ” Jarmon Appl. at 8. Plaintiff specifically points to two occasions when as Lead Auditor he supervised three other auditors, see Pl.’s Opp’n at 20, and one occasion where he supervised eight accountants. See Jarmon Appl. at 8.
The pertinent question is not whether plaintiff lacked leadership and supervisory experience, but whether Davenport “honestly and reasonably believed” that he lacked it.
Brady,
Here, plaintiff has demonstrated that Davenport’s statement is false and raises doubts as to whether that mistake was an honest one. Given that Davenport was tasked with choosing the best candidate for the job, a reasonable factfinder would assume that he had reviewed the applicant’s history and was familiar with plaintiffs qualifications, including his leadership experience. A reasonable juror could therefore question whether Davenport’s mistake was an honest one.
See Aka,
While the evidence is not overwhelming, “in an appropriate case, ‘the factfinder’s disbelief of the reasons put forward by the defendant’ will allow it to infer intentional discrimination.”
Aka
at 1294 (citing
Hicks,
ii. Criteria Used to Select Candidates
Plaintiff also argues that defendant’s use of subjective criteria in making
Here, there was no consensus as to how each member of the selection panel would evaluate the candidates. While, for example, Davenport highlighted certain factors to decide who was best for the position including leadership ability, experience, creativity, and ability to work with other people, Davenport Interv. at 26 — it does not appear that Davenport ever shared this criteria with the other members of the selection panel. Pl.’s Opp’n at 29.
Harkrader, for instance, testified that he received no written or oral instruction regarding how to make the selection, see Harkrader Dep. at 28:10-16, and that he did not remember having any written questions that were asked of all candidates. See Harkrader Dep. at 33:21-34:2. Instead, he considered his own work experience with each candidate, the kind of work they had done in the IHD, and “things of that nature.” Harkrader Interv., Ex. 7 to Def.’s Mot., at 73:25-74:3. DeNigro also testified that the committee “didn’t have specific formal criteria” and that “[tjhere was no specific list of elements or numbered grading or lettered grading of, you know, different elements.” DeNigro Dep. at 60:9-11. She stated that she considered factors such as setting and meeting deadlines, organizational skills, oral presentation skills, writing skills, accepting direction, and working well with different kinds of people. See DeNigro Interv. at 101:14-18,102:20-21.
Because there is disputed evidence regarding different criteria and standards used by different members of the selection panel, a reasonable juror could find that the process was subjective and left open the potential for illegitimate bias.
14
Furthermore, the criteria of being able to work with others and being able to work with management is similar to the “interpersonal skills” criterion that is viewed with suspicion in this Circuit.
See Aka,
In sum, the Court finds that there is sufficient evidence in the record to create a jury question as to whether defendant’s explanation for not hiring plaintiff was false and as to whether defendant acted
B. Claim 2: Disparate Compensation
Plaintiffs second claim is that he received bonus pay at a lower rate and fewer time-off awards than other auditors because of his race. Am. Compl. ¶¶ 27-28. Plaintiff notes that “[o]f the 19 individuals in the [IHD] that received [cash] awards, only one received a lesser award than Plaintiff.” Pl.’s Opp’n at 32 (citing Awds., at 6). Plaintiff also notes that between December 1, 2002, and December 31, 2004, plaintiff received only 32 hours in time-off awards, as compared to Helmer’s 104 hours, Bentley’s 80 hours, and Skadin’s 72 hours. Pl.’s Opp’n at 32; see also Awds. at 9.
Plaintiff claims that the alleged discriminatory reasons that contributed to his denial of promotion also caused him to receive lower pay and awards. See Pl.’s Opp’n at 32 (“As discussed above, Plaintiffs managers harbored discriminatory animus against him.”). Defendant counters that plaintiffs lower awards are consistent with the managers’ belief that Jarmon’s performance was weaker than the selectees’. As previously explained, the Court finds that there is sufficient evidence for a jury to infer discrimination. Accordingly, summary judgment on this claim is therefore DENIED.
C. Claim 3: Retaliation
Plaintiff also alleges that defendant’s failure to promote him was in retaliation for plaintiffs prior EEO activity. As with the first two claims, in the absence of direct evidence of retaliation, the
McDonnell Douglas
burden-shifting framework governs this claim.
Holbrook v. Reno,
In this case, defendant asserts a legitimate, nondiscriminatory reason for not promoting plaintiff, namely that it promoted Bentley, Hellmer, and Skadin because they were better qualified.
See
Def.’s Mot. at 11. Thus, the only remaining question is whether that qualifications-based explanation is “ ‘unworthy of credence.’ ”
Taylor v. Solis,
The parties dispute whether plaintiffs managers had knowledge of his prior EEO activity. Plaintiff argues that Davenport, Boyle, and perhaps DeNigro had knowledge of his prior EEO activity. Plaintiff claims that he personally made Davenport aware of his prior EEO activity during a meeting with Davenport and his second line supervisor, Maureen Del Duca. Jarmon Decl. ¶ 5. According to plaintiff, the purpose of the meeting was to ascertain why he had not been selected for the GS-15 position in 2002. Jarmon Decl. ¶ 5. Davenport, on the other hand, claimed that he was unsure if he knew about plaintiffs prior EEO complaints at the time of the selection decision. See Davenport Interv. at 30:22-24. When asked if he recalled plaintiff telling him about prior EEO complaints at the meeting with Del Duca, Davenport stated that he did not remember plaintiff telling him and that he did not think plaintiff had told him because he would have remembered. See Davenport Dep. at 40:9-21. Thus, there is a disputed issue of material fact regarding whether Davenport knew about plaintiffs prior EEO activity.
DeNigro acknowledged that she knew plaintiff had prepared a grievance, but she could not recall whether that grievance predated or post-dated the selection at issue.
See
DeNigro Interv. at 107:17-108:5. Boyle acknowledged his awareness of plaintiffs prior EEO activity at the time of selection. Boyle Dep. at 77: 7-8. Taking the facts in the light most favorable to plaintiff, the Court assumes that plaintiffs managers did know about his prior EEO activity. Furthermore, as discussed above, the Court finds that there are material issues of fact relating to defendant’s reasons for not promoting plaintiff. The Court therefore DENIES defendant’s motion for summary judgment on plaintiffs
IY. Conclusion
For the aforementioned reasons, the Court DENIES defendant’s motion for summary judgment. An appropriate Order accompanies this opinion.
SO ORDERED.
Notes
. Unless otherwise noted, exhibits are cited herein as "Def.’s Ex.-" or "Pl.’s Ex.-,"
. Although the vacancy announcement listed only two available positions, after the interviews Davenport and the selection panel believed that three of the candidates were qualified for the positions. Davenport Dep. at 19:12-14. Accordingly, Davenport and the selection panel went to Human Resources and obtained an additional slot for a third GS-15 level auditor. Davenport Dep. at 15:12-19, 18:1-19:15.
. The retaliation claim was related to two prior EEO complaints plaintiff filed against the FCC, each alleging an unlawful failure to promote. Miller Decl. ¶ 4. In the first, filed on January 27, 2000, plaintiff alleged that the FCC discriminated against him on the basis of his race when he was not promoted to the GS-14 level in 1998 and to the GS-15 level in 1999. Miller Decl. ¶ 4. That case eventually resulted in this Court awarding summary judgment in favor of the FCC.
See
Miller Decl. ¶ 5 (citing
Jarmon v. Powell,
. In support of this argument, plaintiff offers evidence that he received 32 hours of time-off awards during the period of December 1, 2002 through December 31, 2004. During that same time period, however, Helmer received 104 hours, Bentley received 80 hours, and Skadin received 72 hours. List of Monetary and Time-Off Awards, Pl.'s Ex. 14 (“Awds.”) at 8-9. Monetary awards for the same time period were as follows: Skadin— 1,300; Bentley — $1,200; Helmer — $900; Jarmon — $600. Awds. at 6.
. Plaintiff only addresses the qualifications of Hellmer and Skadin and does not address defendant’s argument that Bentley was just as qualified as plaintiff.
See
Pl.'s Opp’n at 13-14;
see also
Def.’s Reply Supp. Mot. Summ. J. (''Def.’s Reply”) at 6 n. 1. Accordingly, the Court will treat that argument as conceded.
See Franklin v. Potter,
. Skadin also occasionally served as Acting Branch Chief when both the Chief and Deputy Chief were away, a position plaintiff never held. See Skadin Appl. at 4.
. See Def.'s Resps. to Pl.'s Interrogs. and Req. for Produc. of Docs., Pl.’s Ex. 1 at # 16 ("the recollection of IHD managers is that [plaintiff] was generally slow in accomplishing tasks and often had little to show for his efforts....”); DeNigro Interv. at 104:22-24 (“[Plaintiff] has a great deal of difficulty meeting deadlines, or even accepting deadlines, from the managers of the group.”), 104:10-17 ("[S]ome audit work that [plaintiff] performed in the division immediately prior to the promotion being available required a great deal of redoing and editing.... [T]he initial work product was not satisfactory or complete....”); Davenport Dep. at 84:7-9 (stating that plaintiff’s audit ideas made “no sense”).
. Plaintiff received a "pass” rating on all of his performance evaluations prior to the selection. Pl.’s Ex. 4. Before defendant adopted a pass/fail rating system, plaintiff typically received ratings of 4 or 5, in a rating system in which 5 was the highest possible rating. Pl.’s Ex. 4.
. See Def.'s Reply Ex. 19 (emails indicating disagreement over management of the "Saddleback Audit” and informing plaintiff that his tone was "inappropriate and unprofessional.”)
. Jarmon Mem. to Harkrader, Def.'s Ex. 16 at 3.
. While the Court notes that before this case, there was no occasion for defendant to explain its decision,
see Jackson,
. Plaintiff also argues that a statement by DeNigro that plaintiff had not performed as a leader and had not demonstrated leadership capabilities was erroneous. DeNigro Dep., Def.'s Ex. 6 ("DeNigro Dep.”) at 42:3-6. The Court finds this argument unconvincing because DeNigro only referred to plaintiff's leadership
skills
and
capabilities;
she did not claim that he had no experience. DeNigro's "misstatement,” to the degree that it is incorrect, does not rise to the level of "adequate evidence” of discrimination this Circuit has identified elsewhere.
See Alca,
. In contrast to this case, courts have found no evidence of discrimination where there was a set list of criteria by which to judge each candidate and a uniform set of questions that were asked.
See, e.g., Chappell-Johnson v. Bair,
. Plaintiff made several other challenges to defendant’s explanation, none of which the Court finds persuasive. First, plaintiff argues that the selecting officials harbored racially discriminatory animus against him based on statements made by members of the selection committee. Pl.’s Opp’n at 22. This argument fails because plaintiff has not presented sufficient evidence to demonstrate that these statements were linked to plaintiff’s race. Second, plaintiff argues that the selecting officials lack credibility based on inconsistencies in their reasoning for not hiring plaintiff,
see
Pl.’s Opp’n at 28; however, none of these alleged inconsistencies, even if true, give rise to a material issue of fact. Further, while plaintiff’s argument that the panel members' discussion of their testimony prior to providing discovery responses puts their credibility in question,
see
Pl.'s Opp’n at 28, does raise some question as to why they would do so, there is no rule precluding them from such activity. Finally, plaintiff argues that defendant lacks African-American employees in professional positions. Pl.’s Opp'n at 31. The statistics provided, however, are general and do not provide relevant hiring data that would permit a reasonable jury to infer discrimination.
See, e.g., Aguilar v. Salazar,
. Plaintiff misstates the law regarding retaliation claims in this Circuit by setting forth a
prima facie
case that is not recognized in this Circuit. Furthermore, plaintiff does not acknowledge the recent shift in this Circuit after
Brady,
which does not require proof of the prima facie case where an employer has asserted a legitimate non-discriminatory reason for its action.
See
. While the Court's finding rests on the reasons discussed above, the parties’ arguments focused primarily on the issue of temporal proximity and the Court will therefore briefly address the issue. Defendant argues that the events at issue were too far apart to infer retaliation. The time period between the protected activity and the non-promotion was almost fourteen months. This Circuit requires that the temporal proximity between the protected activity and the adverse action be " ‘very close' to show a causal connection.”
McIntyre v. Peters,