Kwon v. BillingtonKwon v. Billington
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Plaintiff Jeanie Kwon brings this action under Title VII of the Civil Rights Act of 1964 (“Title VII“),
BACKGROUND
The material facts are not in dispute. Plaintiff is an Asian-American female born in Korea on July 12, 1937. See Def. Ex. 2. She began working for the Library of Congress in 1985 as a GS-9 preliminary Cataloging Technician. See Def. Ex. 2; Pl. Ex. 1, at 9. In 1997, as the result of a reorganization, she became an Acquisition Technician. See Pl. Ex. 1, at 12-14. Plaintiff says that she has never received any of the promotions she has applied for in her more than twenty
I. The Librarian Cataloger Position
In 1998, the Library of Congress posted a vacancy announcement for the position of a Librarian Cataloger in the Korean/Chinese Team, Regional Cooperative Cataloging Division, Library Services. See Def. Ex. 1. The announcement listed the minimum qualifications for the job as including a knowledge of cataloging rules, the ability to organize, analyze and interpret data, the ability to communicate and interact with others; and the ability to communicate in writing. See Pl. Ex. 2, at 2. The announcement also stated that the applicant must possess the ability to read and comprehend the Korean language. See id. at 2. Plaintiff submitted an application for this position.
A reviewing panel of three members of the Library‘s Human Resources Services reviewed all of the applications to determine who possessed the minimum qualifications for the position. The panel determined that three persons were minimally qualified for the Librarian Cataloger position. See Def. Ex. 4. The panel then ranked the qualified applicants and determined that two of these persons -- plaintiff and Ji Ping Wu -- were the “best qualified” of the candidates for the position.1 See Def. Exs. 4, 5. Wu is an Asian-American female born in China on October 14, 1968. See Def. Ex. 3. She had been employed as a Cataloging Technician at the Library of Congress since 1995, and she had one year of prior experience working part-time as a professional cataloger as a student at the University of Iowa. See id.; Pl. Ex. 26, at 16. On her application, Wu
Both individuals on the “best qualified list” were interviewed by Philip Melzer (the selecting official and the Team Leader for the Korean/Chinese Team, Regional Cooperative Cataloging Division, Library Services) and Angela Kinney (the Special Assistant to the Director of National Services of the Library of Congress). Def. Ex. 6, 7. The interviewers used the same set of questions for each candidate. Def. Ex. 6, 7. As part of the selection process, Melzer contacted plaintiff‘s direct supervisor (James Macleod) and former supervisor of eight years (Megan Caverly), and Wu‘s current supervisor (Jerry Wager). Def. Exs. 10, 11. Caverly gave plaintiff a poor reference in which she stated that plaintiff had difficulty working with people and lacked attention to detail (although MacLeod gave plaintiff a favorable review). See Def. Ex. 11; Pl. Ex. 5, at 68.2 On the other hand, Wager said that Wu was his “best employee.” Def. Ex. 11. Following the interviews, Melzer and Kinney both determined that Wu was the strongest candidate for the Librarian Cataloger position, and Wu was selected for the position effective August 2, 1998. See Def. Exs. 6, 12, 13.
Plaintiff had an active EEOC complaint naming Caverly as a discriminating official at the time that Melzer contacted her.3 See Pl. Ex. 9. Melzer testified that he had no knowledge of any prior EEOC activity by plaintiff at the time of the selection for the professional cataloger position.
II. The Reference Librarian Position
In 2000, the Library posted a Vacancy Announcement for the position of Reference Librarian in the Korean Section, Asian Division, Area Studies Collections, Library Services. See Def. Ex. 15. The announcement listed the skills and abilities relevant to this position as including knowledge of Korean, knowledge of reference librarianship, knowledge of automated bibliographic databases and automated systems, and an ability to communicate and interact with others and to communicate in writing. The first three of these requirements constituted the minimum requirements for this position. See Def. Ex. 15.
Plaintiff applied for the position, as did Sonya Lee, an Asian-American female citizen who was born in Korea on March 18, 1959. Lee was employed at the time as a Cataloging Technician at the Library of Congress. Prior to that position, Lee had worked as a Reference Librarian in the Korean Section from October 1995 to May 1999 (although she was a temporary employee until May of 1998). While in that position, her responsibilities included all of the responsibilities of the open Reference Librarian position. Def. Ex. 17. The Library‘s Human Resources Services ranked plaintiff and Lee as the two “best qualified” candidates. Def. Ex. 18. The reviewing panel scored Lee‘s qualifications higher than plaintiff‘s. Lee received a total score of 69, whereas plaintiff only
Both of the candidates were interviewed by selecting official Helen Poe, Chief of the Asian Division of the Area Studies Collection Library Service. See Def. Exs. 19, 24. Poe concluded that Lee possessed strong experience and skills and interviewed well, and that Kwon had less directly relevant experience and that her “interview did not go as well,” because she would “often times digress,” leading Poe to question her communication skills. Poe contacted Melzer to do a reference check on Lee, and he supported her candidacy, describing her as “cooperative, reliable, highly professional,” and “does much more than required or requested” and “has high standards of excellence.” See Pl. Ex. 20. Poe did not do a reference check on Kwon. See Pl. Ex. 21. Plaintiff claims that Melzer testified he was present in the interview and asked several questions, although Melzer appears to have been testifying about a previous position for which plaintiff interviewed. See Pl. Ex. 5, at 79. Poe selected Lee for the position effective November 19, 2000. Poe states that she did not have any knowledge of plaintiff‘s prior EEO activity. See Def. Ex. 24. Kwon filed a complaint of discrimination with the Library‘s EEOCO on January 22, 2001, identifying Helen Poe as the discriminating officer. See Def. Ex. 25.
III. Plaintiff‘s Action
On April 25, 2003, she filed this action brought this action under Title VII and the ADEA, challenging the denial of her applications for both the Librarian Cataloger and the Reference Librarian positions. The Complaint alleges generally that she was “discriminated” against with regard to the Librarian Cataloger position on the basis of “age, race, national origin, and/or because she opposed the LOC‘s discriminatory practices,” Compl. ¶¶ 1, 10, and that she suffered a “further act of reprisal” when the Library denied her the Reference Librarian position. Following a
STANDARD OF REVIEW
I. Standard for Summary Judgment
Summary judgment is appropriate when the pleadings and the evidence demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”
In determining whether there exists a genuine issue of material fact sufficient to preclude summary judgment, the court must regard the non-movant‘s statements as true and accept all evidence and make all inferences in the non-movant‘s favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A non-moving party, however, must establish more than the “mere existence of a scintilla of evidence” in support of its position. Id. at 252. By pointing to the absence of evidence proffered by the non-moving party, a moving party may succeed on summary judgment. Celotex, 477 U.S. at 322. “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
II. The McDonnell Douglas Framework
A plaintiff has the burden of establishing a prima facie case of discrimination or retaliation by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Tex. Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). To establish a prima facie case of discrimination, a plaintiff must demonstrate that (1) he is a member of a protected class; (2) he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination. Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); Brown v. Brody, 199 F.3d 446, 452 (D.C. Cir. 1999). To make out a prima facie claim of retaliation, a plaintiff must establish that (1) he engaged in a statutorily protected activity; (2) the employer took an adverse personnel action; and (3) a causal connection existed between the two. Brody, 199 F.3d at 452; Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C. Cir. 1985); McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984).
If the plaintiff establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. The employer‘s burden, however, is merely one of production. Burdine, 450 U.S. at 254-55. The employer “need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant‘s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff.” Id. If the employer is successful, the burden shifts back to the plaintiff to show that the employer‘s stated reason was a pretext for discrimination or retaliation. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000).
Assuming then that the employer has met its burden of producing a nondiscriminatory reason for its actions, the focus of proceedings at trial (and at summary judgment) will be on whether the jury could infer discrimination from the combination of (1) the plaintiff‘s prima facie case; (2) any 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) or any contrary evidence that may be available to the employer (such as evidence of a strong track record in equal opportunity employment).
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc); see also Waterhouse v. District of Columbia, 298 F.3d 989, 992-993 (D.C. Cir. 2002).
ANALYSIS
Plaintiff argues that, in denying her promotions both to the Librarian Cataloger and Reference Librarian positions, defendant discriminated against her on the basis of national origin and age, and retaliated against her for her prior EEOC complaints. Defendant moves for summary judgment on each of these claims of discrimination.
I. The Librarian Cataloger Position
A. Discrimination on the Basis of National Origin and Age
Defendant notes that Wu already had professional cataloging experience of the sort that she would need for the job, had received a strongly positive reference from a prior supervisor (who described her as his “best employee“), and had conducted a positive and focused interview. By contrast, plaintiff did not have any experience in professional cataloging (she was only a preliminary cataloger, which did not include many of the same duties), and therefore would require additional training in these topics if selected. See Def. Ex. 12, at 3 (Melzer explanation of hiring decision). Defendant also notes that plaintiff had received only a “satisfactory” performance evaluation for a prior position, a negative reference from a prior supervisor, and gave a poor interview with frequent digressions. Defendant argues that on the basis of these considerations, it was reasonable for Melzer to have concluded that Wu was the stronger candidate. Def. Mem. at 10. Finally, defendant notes that Angela Kinney participated in the interviews as well and independently concluded that Wu was an exceptional candidate and the correct choice, and that plaintiff does not claim that Kinney was motivated by discriminatory animus. Def. Ex. 6.
Plaintiff naturally takes issue with defendant‘s assertion that Wu was a more qualified
Although plaintiff contends that Wu‘s understanding of Korean was so weak that she did not even meet the minimum qualifications for the position, an independent review panel from the Library‘s Human Resources Services department determined that Wu met the minimum qualifications (which include the ability to read and comprehend the Korean language), and plaintiff does not appear to claim that the review panel‘s determination was tainted by discrimination. Def. Ex. 5. Indeed, the record provides an ample basis for the determination that Wu was the better qualified applicant, and no basis at all for the claim that Melzer was motivated by discrimination in the hiring process. See Fischbach, 86 F.2d at 1183 (court does not have authority under Title VII to “second-guess an employer‘s personnel decision absent demonstrably discriminatory motive.”
Plaintiff argues that an inference of discrimination can be drawn from the fact that Melzer was not content to contact plaintiff‘s direct supervisor (who was listed as a reference on plaintiff‘s application), but instead also sought out the views of Caverly (who was not). Plaintiff notes that
Thus, the Court can find no basis at all in the record for the contention that discrimination against the elderly or against people of Korean origin played any role in Melzer‘s decision to hire Wu. In fact, of the four people Melzer hired during his time as team leader of the Korean/Chinese Team, it is undisputed that three were Korean-Americans and one was Chinese-American, and two were over 40 at the time of hire, and two were under 40 at the time of hire. Plaintiff suggests that an inference of discrimination can nonetheless be made from defendant‘s reliance in part on the differences between the candidates in the interview. Although it is true that a heavy use of highly subjective criteria such as “interpersonal skills” could support an inference of discrimination, Aka, 156 F.3d at 1298-99, there was no such heavy use here.
The interview was merely one of the several factors considered by defendant, along with
Thus, plaintiff has not come forward with any evidence that “discrimination was the real reason” for Melzer‘s decision to hire Wu over her. St. Mary‘s Honor Center, 509 U.S. at 515; see Lathram, 336 F.3d at 1088. Summary judgment will therefore be entered on this claim.
B. Retaliation
Defendant contends that plaintiff fails to state a prima facie case with regard to her claim of retaliation for the denial of the Librarian Cataloger position, because she has failed to show that a “causal connection” existed between the protected activity and the adverse personnel action. Morgan v. Fed. Home Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003). To prove that a causal connection existed between protected activities and the alleged retaliatory action, a plaintiff generally must show that the employer knew of his protected activity and that the retaliation closely followed it. See Chandamuri v. Georgetown Univ., 274 F. Supp. 2d 71, 85 (D.D.C. 2003).
Temporal proximity alone may suffice in certain cases to establish the requisite causal connection for retaliation claims. See Gleklen v. Democratic Cong. Campaign Comm., 199 F.3d 1365, 1368 (D.C. Cir. 2000). However, where “mere temporal proximity” is the only evidence of causation, the proximity in time must be “very close.” Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001); Chadamuri, 274 F. Supp. 2d at 85. Plaintiff‘s previous EEOC complaint had been in April 1996, and the Librarian Cataloger vacancy was filled in August 1998. Courts consistently hold that even periods much shorter than two years are insufficient as a matter of law to support a stand-alone inference of a causal connection. See Buggs v. Powell, 293 F. Supp. 2d 135, 149 (D.D.C. 2003) (seven months too long); Garrett v. Lujan, 799 F. Supp. 198, 202 (D.D.C. 1992) (eleven months too long); see generally Woods v. Bensten, 889 F. Supp. 179, 187 (E.D. Pa. 1995) (“[C]ourts generally hold that if at least four months pass after the protected activity without employer reprisal, no inference of causation is created.“). Accordingly, the Court concludes that plaintiff cannot make out a prima facie case of retaliation for the Librarian Cataloger claim.6
II. The Reference Librarian Position
Plaintiff‘s discrimination and retaliation claims also fall short with regard to the Reference
Poe explains that she chose Lee because she had a “strong background” and had previously worked for several years as a Reference Librarian at the Library of Congress “performing all the duties of the position in question.” Def. Ex. 24, at 1-2. Lee had also demonstrated a high degree of proficiency with computer technology. Id. at 1-3. Finally, Poe reported that Lee gave clear, precise, thorough, and well though out answers to interview questions. Id. at 3. Melzer had also given Lee a very positive reference. On the other hand, Poe said that Kwon had less clearly relevant experience and had a limited knowledge of the relevant databases. Id. Furthermore, Kwon‘s “interview did not go as well as Ms. Lee‘s.” Id. Thus, she “selected Ms. Lee based on her knowledge, skills, and experience” compared to Kwon.
Plaintiff insists that she was a stronger candidate than Lee for various reasons, including that she had a working knowledge of both modern Korean and classic Korean, and had first hand knowledge of what Korea was like during the Japanese occupation. Once again, plaintiff must come forward with more than simply an argument that an employer made an erroneous decision between two qualified candidates. See Stewart, 352 F.3d at 430; Fischbach, 86 F.3d at 1183. She
CONCLUSION
For these reasons, the Court grants defendant‘s motion for summary judgment, and enters judgment in favor of defendant on all claims. A separate order will issue.
/s/ John D. Bates
JOHN D. BATES
United States District Judge
Dated: March 31, 2005
Richard L. Swick
SWICK & SHAPIRO, P.C.
1225 Eye Street, NW
Suite 1290
Washington, DC 20005
Phone: (202) 842-0300
Fax : (202) 842-1418
Email: rlswick@swickandshapiro.com
Darrell C. Valdez
UNITED STATES ATTORNEYS OFFICE
CIVIL DIVISION
555 4th Street, NW
Washington, DC 20001
(202) 514-7058
Email: darrell.valdez@usdoj.gov