Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA )
SAMPATH KRISHNAN, )
)
Plaintiff, )
) v. ) Civil Action No. 15-679 (RMC) )
ANTHONY FOXX, Secretary of the U.S. )
Department of Transportation, )
)
Defendant. )
) OPINION
Sampath Krishnan is a telecommunications specialist/program manager at the Federal Aviation Administration (FAA), an agency of the U.S. Department of Transportation (DOT). Mr. Krishnan is a seventy-two year-old Asian, East Indian and Hindu male who has worked at DOT for 28 years. His current job title is FV-J Telecommunications Specialist/ Program Manager. In 2011, Mr. Krishnan applied for two posted supervisory specialist positions, but the FAA filled a single position and selected another candidate, David Meusel, who is a “white, younger, Caucasian, Christian, non-Asian Indian.” Am. Compl. [Dkt. 4] ¶ 23. As a result, Mr. Krishnan, proceeding pro se , brought this action under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq ., and the Age Discrimination in Employment Act of 1967 (ADEA), 42 U.S.C. § 621 et seq ., against Anthony Foxx in his official capacity as the Secretary of DOT.
Specifically, Mr. Krishnan asserts claims of race discrimination (Count I), age discrimination (Count II), retaliation (Count III), “Preferential Treatment Resulting in Discrimination” (Count IV), “Ongoing Pattern of Discrimination” (Count V), religious *2 discrimination (Count VI), national оrigin discrimination (Count VII), ethnic background discrimination (Count VIII), and gender discrimination (Count IX). Am. Compl. ¶¶ 103-48. DOT has filed a Motion to Dismiss or, in the alternative, a Motion for Summary Judgment on all claims. Mot. for Summ. J. [Dkt. 6] (MSJ). Mr. Krishnan filed a timely opposition, to which DOT replied. For the reasons that follow, the Court will grant DOT’s Motion to Dismiss as to some claims and Motion for Summary Judgment as to others.
I. FACTS
Mr. Krishnan’s discrimination and retaliation claims arise from his non-selection in 2011 for two posted supervisory specialist positions. [1] The FAA interviеwed three people, including Mr. Krishnan, but ultimately selected Mr. Meusel to fill a single vacancy. Am. Compl. ¶ 30. Mr. Krishnan was ranked second and “scored significantly lower on [the] selection procedure” than did Mr. Meusel. Am. Compl. ¶¶ 30, 47-48. [2] According to the selecting official, Jeffrey McCoy, “Mr. Krishnan was not selected because another candidate was found to be more qualified.” MSJ, Ex. 1 [Dkt. 6-1] (McCoy Aff.) ¶ 38. Mr. Krishnan did not have “any direct managerial or leadership experience in managing a large workforce responsible for managing mission critical telecommunications networks.” Id. Mr. Meusel, however, had worked as Acting Manager of the Network Operations team in 2010 for a period of six months. Id. ¶ 45.
Mr. McCoy concluded that Mr. Krishnan could have been successful in the supervisory specialist position, but that it would have required a considerable amount of time, *3 training, and close supervision as he learned the ropes. Id. ¶ 38. Mr. Meusel did not present the same concerns due to his prior experience as Acting Manager and his detailed responses to questions during his interview. Id. ¶ 45. Mr. Meusel was found to be more qualified than Mr. Krishnan.
Mr. Krishnan also asserts that since 1991, he has been discriminated against and consistently turned down for promotions. See, e,g. , Am. Compl. ¶ 16 (“Krishnan was interviewed for close to two dozen positions, but learn[ed] that these positions went to younger non-Asian Indians, non-Hindu, non-brown and mostly to white, Caucasian Christians.”); ¶ 39 (“Since 2002, Krishnan has applied for numerous promotional positions with the USDOT/FAA”); ¶ 42 (alleging a reassignment requеst made around 2003); ¶ 63 (alleging that DOT “[b]locked Krishnan’s promotions to more than 30 positions”); ¶ 93 (“[A]t least since 2003, employment history for DOT/ FAA . . . show[s] that it gives its employees who are white, Caucasian, Christian and younger disproportionately more leadership roles, higher performance appraisals, more frequent and larger bonuses, awards and pay increases, and more frequent and faster promotions.”). Mr. Krishnan included his own affidavit in support of his opposition, but it contаins equally imprecise allegations concerning events prior to 2011. See generally Opp’n, Ex. 1 (Krishnan Aff.).
II. LEGAL STANDARD
A. Standard of Review
A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).
A complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the
grounds upon which it rests.”
Bell Atl. Corp. v. Twombly
,
In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged
in the complaint, documents attached to the complaint as exhibits or incorporated by reference,
and matters about which the court may take judiсial notice.
Abhe & Svoboda, Inc. v. Chao
, 508
F.3d 1052, 1059 (D.C. Cir. 2007). If, in considering a Rule 12(b)(6) motion, “matters outside the
pleading are presented to and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56[.]”
Holy Land Found. For Relief &
Dev. v. Ashcroft
,
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall
be granted “if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
accord Anderson v.
Liberty Lobby, Inc.
,
III. ANALYSIS
Sampath Krishnan has had a long career at FAA and has never been promoted above a GS-13, despite his many applications for such positions. At some points in the past, he filed discrimination complaints against FAA, in which the most recent event was a 2009 settlement. In the instant case, he complains of years of discriminatory treatment. Most particularly, he complains that he was not promoted in 2011 and that a younger, white, non-Hindu male got the job instead.
A. Pre-2011 Non-Selections
Defendant moves to dismiss all claims based on pre-2011 events because the
Amended Complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). Thе Court agrees. Mr. Krishnan concedes that he failed to exhaust his administrative
remedies as to these matters. It is well established that a plaintiff must comply with its
administrative exhaustion requirements as a precondition to his suit.
See Nat’l R.R. Corp. v.
Morgan
,
While he argues that his numerous unsuccessful applications for promotion
constitute a continuing violation of his rights to equal employment opportunity (EEO), each was
a discrete event that required a timely EEO complaint.
See Morgan
,
B. Discrimination Claims based on 2011 Non-Selection
Defendant moves for summary judgment on Mr. Krishnan’s discrimination claims
under Title VII and ADEA based on the 2011 non-selection, that is, Counts I, II, and IV-IX of
*7
the Amended Complaint. “Under Title VII [and] the ADEA . . ., the two essential elements of a
discrimination claim are that (i) the plaintiff suffered an adverse employment action (ii) because
of the plaintiff's race, color, religion, sex, national origin, [or] age . . . .”
Baloch v. Kempthorne
,
A plaintiff can adduce either direct or circumstantial evidence of discriminatory
intent. In the absence of direct evidence, a plaintiff “must resort to the burden-shifting
framework of
McDonnell Douglas Corp. v. Green
,
In the instant case, Mr. Krishnan does not, and cannot, show that Mr. Meusel’s
selection supports a claim of gender discrimination because Mr. Meusel and Mr. Krishan share
the same gender. Accordingly, Mr. Krishnan has failed to establish a
prima facie
case of gender
discrimination with regard to his 2011 non-selection and the claim will be dismissed.
See Greer
v. Bd. of Trustees of Univ. of D.C.
,
With respect to the other discrimination claims, Defendant has articulated a legitimate nondiscriminatory reason for Mr. Krishnan’s non-selection: “another candidate was found to be more qualified.” McCoy Aff. ¶ 38. Defendant has produced evidence to this effect *9 and the Amended Complaint recognizes that Mr. Krishnan “scored significantly lower on [the] selection procedure” thаn did Mr. Meusel. Am. Compl. ¶¶ 47-48.
Mr. Krishnan does not contest Defendant’s proffered facts, specifically that: (1) Mr. Krishnan lacked “direct managerial or leadership experience in managing a large workforce responsible for managing mission critical telecommunications networks;” (2) Mr. Krishnan’s written responses to the Knowledge, Skills, and Abilities and Other Characteristics (KSAO) “provided few details and/or examples of where he actually applied those concepts;” аnd (3) Mr. Krishnan’s responses during his interview were not concrete on how to “build coalitions, lead change, or resolve conflicts.” McCoy Aff. ¶ 38. Mr. Krishnan does not dispute that Mr. Meusel had some direct experience as an acting manager and does not address Mr. McCoy’s statement that Mr. Meusel’s written and oral responses were more detailed and comprehensive than Mr. Krishnan’s. McCoy Aff. ¶ 45.
Instead, Mr. Krishnan advances three arguments to show pretext: (1) he was a highly-qualified employee with a distinguished career at DOT/FAA; (2) he was more qualified than Mr. Meusel; and (3) Mr. McCoy did not follow agency selection procedures. [6] Mr. *10 Krishnan submits an admirable record of extensive academic preparation and training, as well as one “year of supervisory experience at FV-K level overseeing not only operations but also maintenance of a vital Air Traffic Control Center in New York that was responsible for critical systems that included the oрerational telecommunications.” Opp’n at 3. He argues that he has had “exceptional performance appraisals” throughout his career and that he “has been involved in efforts to foster diversity and improve the work life of his colleagues, particularly those of Pacific-Asian descent.” Id. Defendant does not dispute any of Mr. Krishnan’s statements. Defendant agrees that Mr. Krishnan could have been successful in the supervisory specialist position with additional time, training, and close supervision in the new position. McCoy Aff. ¶ 38. Nonetheless, these allegations merely establish a prima facie case, ( i.e. , that he is a member of a protected class, was qualified for the position, and was rejected in favor of an employee outside the protected class) and do not show pretext in the selection decision.
Second, Mr. Krishnan argues that he was more qualified than the selectee, Mr.
Meusel. Mr. Krishnan’s assertion contradicts his оwn Amended Complaint, which states that
“he is
equally or
better qualified” than Mr. Meusel “in terms of job performance, education,
professional certifications, and pre-DOT work experience . . . .” Am. Compl. ¶¶ 84, 88
(emphasis added). Discrimination will not be inferred from a comparison of candidate
qualifications absent a showing that “plaintiff’s qualifications were
far superior
to the successful
see also Vatel v. Alliance of Auto. Mfrs.,
supervised.
candidate’s.”
Singleton v. Potter
,
Mr. Krishnan invites the Court to compare his qualifications to those of Mr.
Meusel. It is undisputed that both Mr. Krishnan and Mr. Meusel were qualified for the position
and that Mr. Meusel scored higher than Mr. Krishnan on Mr. McCoy’s written and oral
questions. Am. Compl. ¶¶ 30, 47-48. Mr. Krishnan’s comparison of his qualifiсations to those
of Mr. Meusel does not show that Mr. Krishnan was far superior, particularly since Mr. McCoy’s
decision was based on other factors.
See
McCoy Aff. ¶¶ 38, 45 (explaining that selection was
based on Mr. Meusel’s acting manager experience and his detailed written and oral responses).
Morevoer, Mr. Krishnam’s assessment of his own qualifications is not persuasive evidence of
pretext.
See Waterhouse v. District of Columbia
,
Additionally, Mr. Krishnan contends that Mr. McCoy did not follow agency
procedures during the interview process and that this shows discrimination. In opposition to
Defendant’s motion for summary judgment he states, “Krishnan contends that the vacancy
announcement required the use of ‘Knowledge, Skills, Abilities and Other Characteristics’
(KSAO) criteria, which Defendant acknowledged not using in these interviews because
Defendant ‘devised his own interview tool.’” Opp’n at 4. Mr. MсCoy did consider the KSAOs,
and the “interview tool” to which Mr. McCoy’s refers was Mr. McCoy’s scoring system by
which he rated each candidate’s answers to interview questions. McCoy Aff. ¶¶ 27, 36, 37,
46;
see also id.
¶ 54 (indicating that Mr. McCoy “established standard scoring criteria” and that
the KSAOs were applied “equally for all three candidates”). There is no evidence to the contrary
FAA) that should be tried before a proper jury trial.” Nagi Aff. ¶¶ 6-7, 9. Mr. Nagi does not
rebut any of Defendant’s proffered facts and does not show that Mr. Krishnan wаs significantly
better qualified than Mr. Meusel, particularly in those critical areas identified by Mr. McCoy.
Mr. Krishnan uses quotation marks but provides no citation in support.
*13
in the record. Mr. Krishnan does not dispute that Mr. McCoy asked each candidate the same
questions in writing and in their interviews and does not explain why the interview process was
discriminatory. Even if there were a technical violation of agency procedures and Mr. Krishnan
was “victimized by poor selection procedures,” Mr. Krishman fails to support his allegations
with sufficient facts from which a reasonable jury could conclude that Mr. McCoy discriminated
against Mr. Krishnan during the interview and selection process.
Hairston v. Vance-Cooks
, 773
F.3d 266, 272 (D.C. Cir. 2014) (internal quotation marks omitted);
see also Downing v. Tapella
,
Accordingly, judgment will be entered in favor of Defendant on Mr. Krishnan’s discrimination claims.
C. Retaliation Claims based on 2011 Non-Selection
Defendant moves to dismiss Mr. Krishnan’s retaliation claims under Title VII and
ADEA based on the 2011 non-selection, which is in Count III of the Amended Complaint. Mr.
Krishnan has not produced any direct evidence of retaliation and, therefore, must assert his
claims subject to the
McDonnell Douglas
framework. To establish a
prima facie
case of
retaliation, Mr. Krishnan must show that: (1) he engaged in protected activity; (2) he suffered a
materially adverse action by his employer; and (3) a causal link existed between the protected
activity and the adverse action.
See Jones v. Bernanke
,
The Amended Complaint does not clearly identify Mr. Krishnan’s prior protected
activity, but he argues in opposition that he is relying on discrimination complaints filed in 1997,
2004, and 2008. Opp’n at 22 (indicating that: (1) his 1997 complaint was partially settled in
2007; (2) his 2004 complaint was closed in 2007 and settled in 2009; and (3) his 2008 complaint
was closed the same year). “[A]ny inference of causal connection is . . . unwarranted” because
Mr. Krishnan’s non-selection occurred several years after the most recent of these protected
activities.
Singleton
,
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendant’s Motion to Dismiss as to some Counts and Summary Judgment as to others. The Court will strike Count IV as redundant under Rule 4(f) of the Federal Rules of Civil Procedure. The following сlaims will be dismissed: (1) claims under Title VII or ADEA based on the pre-2011 non-selections, because they were not administratively exhausted; (2) retaliation claims under Title VII and ADEA, because the prior protected activity occurred too long ago to infer causation (Count III); (3) *15 Ongoing Pattern of Discrimination claim, because it is a method of proof, as opposed to a separate cause of action, and because the discrete events of non-promotion were not charged on time (Count V); and (4) gender discrimination claim under Title VII based on the 2011 non- selection, because both Mr. Krishnan and Mr. Meusel are men (Count IX). Summary judgment will be entered in favor of Defendant on the following claims based on the 2011 non-selection: (1) race discrimination under Title VII (Count I); (2) age discrimination under ADEA (Count II); (3) religious discrimination under Title VII (Count VI); (4) national origin discrimination under Title VII (Count VII); and (5) ethnic background discrimination under Title VII (Count VIII).
A memorializing Order accompaniеs this Memorandum Opinion. This case is closed.
Date: April 11, 2016
/s/ ROSEMARY M. COLLYER United States District Judge
Notes
[1] Only one vacancy existed, but it could have been filled in either Washington, D.C. or Melbourne, Florida. Two announcements were posted, with one for each locale.
[2] Mr. Krishnan attempts to deny these facts, see Opp’n [Dkt. 8], SOF ¶ 6, but they come directly from the Amended Complaint.
[3] Mr. Krishnan does not dispute these facts but argues, without detail, that “[t]he selecting official’s actions” and “[t]he management actions are material issues in dispute in this case.” Opp’n, SOF ¶ 6.
[4] The Cоurt will strike Count IV of the Amended Complaint, “Preferential Treatment Resulting
in Discrimination,”
see
Am. Compl. ¶¶ 126-29, because it is redundant and duplicates Mr.
Krishnan’s other claims. Fed. R. Civ. P. 12(f) (“The Court may strike from a pleading . . .
any redundant . . . matter.”). With respect to Count V, “Ongoing Pattern of Discrimination,”
see
Am. Compl. ¶¶ 130-32, Defendant correctly claims that it should be dismissed because “it is not
a separate and free-standing cause of action . . ., but is really merely another method by which
disparate treatment can be shown,”
United States v. City of New York
,
[5] The analysis below applies to the remaining protected classes on which Mr. Krishnan relies for his discrimination claims under Title VII and ADEA, i.e ., race, age, religion, national origin, and ethnic background.
[6] Mr. Krishnan arguеs in passing that Stephen Dash, his former supervisor, had “made disparaging remarks in the past about his ethnicity and stated that [Mr. Krishnan] was ‘not management material.’” Opp’n at 15 (emphasis added). Specifically, Mr. Krishnan alleges that Mr. Dash called him a “cow chaser.” Id. at 25. Undoubtedly, this alleged statement would be derogatory and profoundly insensitive. However, Mr. Krishnan did not show that Mr. Dash was involved in Mr. Meusel’s selection and did not dispute Mr. McCoy’s sworn statement that he “was the only person involved in this seleсtion process.” McCoy Aff. ¶¶ 25-26. The fact that Mr. Dash signed off on Mr. McCoy’s selection decision, as Mr. McCoy’s direct superior, does not suggest otherwise. It is to be noted that, “[d]irect evidence does not include stray remarks in the workplace, particularly those made by nondecision-makers or statements made by decision makers unrelated to the decisional process itself.” Daniel v. Johns Hopkins Univ. , 118 F. Supp. 3d 312, 315-16 (D.D.C. 2015) (quoting Kalekiristos v. CTF Hotel Mgm’t. Corp., 958 F.Supp. 641, 665 (D.D.C.1997)) (stating that a “single remark . . . albeit insensitive, is insubstantial to establish direct evidence of racial or national origin discrimination on the part of the defendant”);
[8] Mr. Krishnan included an affidavit from his colleague, Amritpal S. Nagi. See Opp’n, Ex. 2 (Nagi Aff.). Mr. Nagi was the third candidate for the supervisory specialist position at issue. Nagi Aff. ¶ 7. Mr. Nagi asserts inter alia that Mr. Krishnan was better qualified than Mr. Meusel, that Mr. McCoy is “a mirror image of his crooked ex-boss” who dislikes Asian Indians, and that “Mr. Krishnan has a very genuine discrimination complaint supported with substantial credible evidence and witnesses (evidence spanning the past 28 years of employment within the