Andrea PETERSON, Plaintiff, v. ARCHSTONE, Defendant.
Civil Action No. 08-1326(RWR).
United States District Court, District of Columbia.
Feb. 27, 2013.
Nаncy North Delogu, Sarah Elizabeth Henninger, Littler Mendelson, P.C., Washington, DC, for Defendant.
MEMORANDUM OPINION
RICHARD W. ROBERTS, District Judge.
This matter is before the Court on the parties’ cross-motions for summary judgment. For the reasons discussed below, summary judgment will be granted for defendant.1
I. BACKGROUND
Archstone Communities LLC (“Archstone“) “is an investor, developer and operator of apartment communities in the United States,” and its “portfolio includes numerous properties in the Washington, D.C. metropolitan area.” Def.‘s Mem. of Law in Supp. of its Cross-Mot. for Summ. J. and Opp‘n to Pl.‘s Mot. for Summ. J. [ECF No. 119] (“Def.‘s Mem.“), Decl. of Chris DeLisa (“DeLisa Decl.“) ¶ 2. Its corporate headquarters are in Englewood, Colorado. See id., Decl. of Breanne Taylor (“Taylor Decl.“) ¶ 2. Arсhstone recruits employees principally “through its online application system which potential applicants access via Archstone‘s website.” DeLisa Decl. ¶ 3. “At no time during the application process does Archstone request or solicit information regarding an applicant‘s age.” Id.
At all times relevant to the complaint, the online application system, the Taleo system, allowed applicants to search for
On October 30, 2006, plaintiff “created her general profile on Taleo through Archstone‘s website.” Id. ¶ 6. On November 2, 2006, plaintiff uploaded her resume, a cover letter, and a “summary of skills and experience.” Id. She also applied for two open positions—Community Manager for Archstone-Smith in the D.C. Metro Area, and Assistant Community Manager for Archstone—and completed the pre-screening questionnaire for each position. Id. ¶ 7; see id., Ex. 2 (pages designated ARCHSTONE 00038-47). The Taleo system deemed plaintiff not minimally qualified for either position and it generated a rejection letter which was sent to plaintiff by e-mail. Id. ¶ 7; see id., Ex. 2 (page designated ARCHSTONE 00055). Plaintiff did not apply for any other position using the Taleo system after November 2, 2006. Id. ¶ 9. However, because the system retained plaintiff‘s contact information, “on November 7, 2006, an electronic announcement dealing with the time and location of four job fairs being held in November 2006 in the Washington, D.C. metropolitan area was e-mailed to [her].” Id. Archstone hosted these job fairs “to help identify potential candidates for open positions,” id., and one such job fair occurred on November 16, 2006, in Washington, DC. Id. ¶ 10; see Taylor Decl. ¶ 5.
Plaintiff attended Archstone‘s job fair on November 16, 2006, at its Van Ness South property in Northwest, Washington, DC. See Am. Compl. ¶¶ 12-13. She observed that the Archstone personnel in attendance “were all younger individuals as were all of the candidates.” Id. ¶ 13. Therе she “met with either an Archstone Recruiter, or a Community Manager, as well as an Operations Manager, regarding open Community Manager positions in the Washington, D.C. region.” Def.‘s Mem., Decl. of Duane Wooldridge (“Wooldridge Decl.“) ¶ 4; Am. Compl. ¶¶ 14-15. The Operations Manager with whom plaintiff spoke was Jim McDonald, the Operations Manager of an Archstone property in Arlington, Virginia. See Mem. in Supp. of Pl.‘s Mot. for Summ. J. [ECF No. 109-1] (“Pl.‘s Mem.“), Ex. B2.
After “this initial pre-screening meeting, [plaintiff] was referred to [Duane L. Wooldridge] for an interview regarding an open Community Manager position,” Wooldridge Decl. ¶ 5, at Archstone Dulles, id. ¶ 9, in Herndon, Virginia, id. ¶ 5.2 Plaintiff was interested in the Community Manager position in part becаuse Archstone employees would “receive a significant discount on apartment rent and that the amount is calculated before taxes thereby yielding a greater discount.” Pl.‘s Mem., Ex. L [ECF No. 113-6 (“Peterson Aff.“)] ¶ 9. “[H]ousing was plaintiff‘s greatest expense
Mr. Wooldridge describes the Community Manager position as follows:
Each Archstone residential property employs a Community Manager, which is the highest level position in each property. A Community Manager may supervise eight to fifteen Archstone associates, including maintenance staff, administrative staff, leasing staff, and assistant managers, and may be responsible for 350 to 500 units per site. As such, each Community Manager is responsible for as many as 1,000 customers on a daily basis, and represents the property to countless potential customers. The Community Manager is responsible for maximizing the long-term operating performance of his or her property, which includes personnel management and development, a thorough understanding of the competitive market, and high standards for customer service. Community Managers are responsible for recruiting, retaining, training, and developing a team of sales-focused, service-oriented, business-minded property management professionals who in turn perform day-to-day upkeep on the property. Community Managers are also responsible for developing and using strong marketing and customer service skills at the property in order to drive revenues. . . .
In order to qualify for a Community Manager position, a candidate must possess three to ten years of professional experience, which should include experience in asset and/or property management and on-site experience. The candidate must also have strong communication skills and must be a teacher, team builder, and team player. Because the Community Manager is the highest position at a property, [she] must possеss superb customer service experience and skills in order to drive sales and to develop associates that . . . she supervises.
Wooldridge Decl. ¶¶ 6-7. “Administrative staff, leasing staff, and assistant managers at Archstone residential properties mu[st] also possess superior customer service skills” because each is called upon “to work directly with residents and potential residents.” Id. ¶ 8.
The interview took place at Archstone‘s regional headquarters office in Crystal City, Virginia, in December 2006. Id. ¶ 9; Am. Compl. ¶ 16. During the interview, Mr. Wooldridge “concluded that [plaintiff] lacked residential property management experience and relevant customer serviсe experience.” Wooldridge Decl. ¶ 10. He further recalled:
I found that that [plaintiff] came across as somewhat odd and would put people off as she had a somewhat condescending manner. Indeed, my interview with [her] felt very strained as [plaintiff] acted as though she was doing me a favor by offering to work at Archstone. In general, I felt that not only did [plaintiff] lack the necessary customer service experience, I felt she would struggle with the customer service aspect of the Company‘s business, particularly when things got busy or did not go the way that they should, which happens all of the time. Overall, I concluded that Ms. Peterson was not a good fit for а customer-oriented position within the Company and decided not to offer her the Community Manager position.
Id. He so informed the recruiting staff at Archstone‘s Colorado headquarters office. Id. ¶ 11. With respect to plaintiff‘s age, Mr. Wooldridge averred:
The decision not to hire [plaintiff] was not based upon her age, nor her salary expectations, but on her qualifications—
in particular, my conclusion that she lacked the requisite customer service skills and had no residential property management experience. At no time did I take [plaintiff‘s] age into consideration in making a decision regarding her application for employment with Archstone.
Id. ¶ 14.
“In follow up to the interview, Plaintiff sent a thank you letter and shared/reiterated skills and experience that she believed enhanced her qualifications for the position.” Am. Compl. ¶ 17; see Pl.‘s Mem., Ex. C1 [ECF No. 114] (Letter from plaintiff to Duane Wooldridge dated December 16, 2006).
At Mr. Wooldridge‘s request, Archstone sent plaintiff a rejection letter which in relevant part stated:
Thank you for your interest in Archstone-Smith. We were very impressed with your skills and experience level. However, we had other candidates whose skills more closely matched the requirements for this position.
We will be sure to keep your resume on file for six (6) months, and will contact you if we should have an opening that more closely fits your qualifications. Likewise, please don‘t hesitate to apply online for any other open positions you fell match your skills and experience.
Pl.‘s Mem., Ex. D [ECF No. 110-6] (Letter to plaintiff from The Recruitment Department at Archstone-Smith).3
Mr. Wooldridge interviewed other candidates for the Community Manager position at Archstone Dulles, and ultimately hired a 34-year old woman who “was better qualified” than plaintiff. Id. ¶ 12. The successful candidate “had prior residential property experience as the Director of Sales and Marketing/Leasing at another Class A luxury high rise property and more than five years of experiencе in that field.” Id. In addition, she “had demonstrable customer service skills related to resident sales, satisfaction and retention.” Id. She began her employment in February 2007. Id.
Meanwhile, plaintiff “maintained ongoing telephone and email contact with a Human Resource Recruiter at [Archstone‘s] headquarters in Colorado,” and during these contacts she “continued to express her interest in both full and part time positions for Leasing Consultant, Concierge, Community Manager, Assistant Community Manager, General Manager, [and] Customer Service Associate.” Am. Compl. ¶ 18; see Peterson Aff. ¶ 11. “Plaintiff regularly checked [Archstone‘s] web site,” Am. Compl. ¶ 19, and noted that it “continued to recruit for positions that plaintiff was qualified to fill.” Id. ¶ 20.
On at least one occasion, plaintiff spoke with Breanne Taylor, who was an HR Recruiter at Archstone‘s corporate headquarters. Def.‘s Mem., Taylor Decl. ¶¶ 2, 8. Ms. Taylor did “not recall the specifics of [their] conversation,” but had plaintiff “expressed any interest in a specific position at Archstone,” she would have directed plaintiff “to apply for the position through the Company‘s website, as [she] did to all potential external applicants.” Id. ¶ 8. Ms. Taylor “[a]t no time . . . recall[ed] asking [plaintiff] about her age,” nor did she “have any knowledge as to how old [plaintiff] was.” Id. ¶ 9.
Plaintiff sent a letter to Ms. Taylor on October 13, 2007, Pl.‘s Mem., Ex. H [ECF No. 113-2], and the letter in turn was forwarded to Troy Negley, who then was
Although plaintiff did not apply for any other position using the Taleo system after November 2, 2006, DeLisa Decl. ¶ 9, plaintiff considered herself “an active employment candidate with Archstone” from November 2, 2006 through October 30, 2007. Pl.‘s Mem. at 11. Plaintiff alleges that, on or about August 1, 2007, she filed an age discrimination complaint against Archstone with the Equal Employment Opportunity Commission (“EEOC“). Peterson Aff. ¶ 12; see Am. Compl. ¶ 31. It apрears that plaintiff completed an intake questionnaire, not a formal charge of discrimination, at that time. See Peterson Aff. ¶ 13; Pl.‘s Reply Mem. to Def. Opp‘n to Pl. Mot. for Summ. J. and Pl. Opp‘n Mem. to Def. Cross Mot. for Summ. J [ECF No. 127] (“Pl.‘s Reply“), Ex. L [ECF No. 127-16] (Letter to plaintiff from Carolyn M. Allen, Program Assistant, EEOC, dated August 1, 2007). It further appears that the charge was not perfected and signed by plaintiff until February 18, 2008. See Archstone Mot., Decl. of S. Libby Henninger, Ex. 6 (Amended Charge of Discrimination, EEOC No. 570-2007-01959 and Case Log) [ECF No. 119-5].4 The alleged discriminatory actions occurred between November 2006 and October 30, 2007. Id. (Amended Charge of Discrimination) at 1. Nevertheless, the EEOC sent Archstone a Notice of Charge of Discrimination on or аbout January 29, 2008. See Mem. of P. & A. in Supp. of Def. Archstone Communities, LLC‘s Mot. to Dismiss or, in the Alternative, for Summ. J. [ECF No. 7], Ex. 2 (Notice of Charge of Discrimination dated January 29, 2008).
Plaintiff, who is over 60 years of age, Am. Compl. ¶ 8, alleges that Archstone did not hire her because of her age in violation
The Clerk of Court received plaintiff‘s original complaint and application to proceed without prepayment of fees on July 21, 2008. The application was approved on July 30, 2008, and the complaint and application were officially docketed on July 31, 2008.
II. DISCUSSION
A. Summary Judgment Standard
The Court grants summary judgment “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.”
There are certain material facts about which there is no genuine issue in dispute: (1) at all relevant times, plaintiff was over 60 years of age; (2) Archstone‘s decisions not to hire plaintiff are adverse employment actions; and (3) these adverse employment actions occurred no earlier than November 6, 2006, and no later than October 30, 2007.
B. Plaintiff‘s Claims Under the DCHRA Arising Before July 21, 2007 Are Time-Barred
Archstone moves for summary judgment on the ground that, under both the ADEA and the DCHRA, plaintiff‘s complaint is time-barred. See generally Def.‘s Mem. at 14-15. With respect to the ADEA, Archstone notes that, because the District of Columbia is a “deferral jurisdiction,” an age discrimination charge to the EEOC is timely only if it is filed within 300 days of the allegеd discriminatory act. See, e.g., Coleman v. Potomac Elec. Power Co., 310 F.Supp.2d 154, 158 (D.D.C.2004). According to Archstone, “[a]lthough Plaintiff apparently completed an EEOC intake ques- tionnaire
There are circumstances under which an intake questionnaire may comprise a charge of discrimination. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remеdial action to protect the employee‘s rights or otherwise settle a dispute between the employer and the employee.“); Johnson-Parks v. D.C. Chartered Health Plan, 713 F.Supp.2d 39, 45-46 (D.D.C.2010) (evaluating whether an intake questionnaire constituted a charge under the Holowecki standard); see also
With respect to plaintiff‘s DCHRA claim, the statute of limitations period is one year and it begins to run “from the occurrence or the discovery of the discriminatory act.” Miller v. Insulation Contractors, Inc., 608 F.Supp.2d 97, 105 (D.D.C.2009). Archstone argues that “any alleged injuries suffered by Plaintiff that occurred prior to July 21, 2007,” one year prior to the filing of this civil action on July 21, 2008, “cannot form the basis of a claim brought under the DCHRA.” Archstone Mem. at 15. Although plaintiff addresses Archstone‘s timeliness argument with respect tо the ADEA claim, see generally Pl.‘s Reply at 30-33, she does not mention the one-year statute of limitations under the DCHRA.
The last date on which a claim under the DCHRA could have accrued was October 30, 2007, the date of Mr. Negley‘s email. Plaintiff filed her complaint in this Court on June 21, 2008, such that any claim arising from Mr. Negley‘s decision is timely filed. However, the one-year limitations period for any claim arising from the November 6, 2006 Taleo-generated letter ex- pired
C. Plaintiff Fails to Rebut Archstone‘s Legitimate, Non-Discriminatory Reason for its Hiring Decision
In a case such as this, where plaintiff presents no direct evidence of age discrimination, her claim under the ADEA is “analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), as simplified by Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C.Cir. 2008).” Hicks v. Gotbaum, 828 F.Supp.2d 152, 160 (D.D.C.2011). Accordingly, “where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-discriminatory 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.” Brady, 520 F.3d at 494 (emphasis in original). Instead, the Court addresses only one question:
Has [plaintiff] produced sufficient evidence for а reasonable jury to find that the employer‘s asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of [her age]?
Brady, 520 F.3d at 493-94 (citations omitted); Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C.Cir.2008) (applying Brady to ADEA claims); Blocker-Burnette v. District of Columbia, 842 F.Supp.2d 329, 334 (D.D.C.2012) (same). The same analysis applies to plaintiff‘s claim under the DCHRA. See Primas v. District of Columbia, 878 F.Supp.2d 1, 7 (D.D.C.2012) (“Age discrimination claims under the ADEA and DCHRA are analyzed in the same way sex and gender discrimination claims are analyzed under the federal anti-discrimination laws.“); Washington Convention Ctr. Auth. v. Johnson, 953 A.2d 1064, 1073 n. 7 (D.C.2008) (“This court has looked to federal court decisions interpreting the [ADEA] when evaluating age discrimination claims under the DCHRA.“). At all times, plaintiff “retains the burden of persuasion to establish that age was the ‘but-for’ cause of the employer‘s adverse action.” Gross v. FBL Financial Servs., Inc., 557 U.S. 167, 177 (2009).
Plaintiff alleges “that age was the sole determent [sic] factor in Archstone‘s decision not to hire [her] and that defendant has no evidence, no records and no memory to refuse the facts” that she “applied for multiple positions,” was qualified for these positions, and that she “was not selected because of her age.” Pl.‘s Mem. at 1 (page numbers designated by ECF). Archstone represents that it did not hire plaintiff for “a legitimate, non-discriminatory reason . . . namely that she failed to convince her interviewer that she had the relevant customer service skills and did not have residential property managеment experience.” Def.‘s Mem. at 18. Archstone‘s burden is “one of production, not persuasion.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). It need only articulate a legitimate nondiscriminatory reason for its hiring decision and offer admissible evidence in support of that reason. See id. Archstone has done so in this case. Plaintiff‘s ability to defeat Archstone‘s motion for summary judgment depends on her ability to point to evidence in the record to show that Archstone‘s stated reason for not selecting her for any position is pretextual. “In the summary judgment context, this means the plaintiff
Plaintiff states that “Archstone‘s strategy to win this case was to destroy records and build a fictional account as a pretext for not hiring a qualified candidate but for her age.” Pl.‘s Mem. at 5. Plaintiff asserts that Archstone intentionally destroyed records pertaining to her applications, id. at 6, notwithstanding its own record retention policies, id., in order that Archstone would be unable to produce in discovery records regarding not only plaintiff‘s November 16, 2006 interview with Mr. McDonald at the job fair but also her subsequent communications with Archstone representatives. See id. She harks back to the parties’ discovery disputes, see id. at 8, and now claims to be “unable to obtain vital evidence necessary . . . to present her case” because of Archstone‘s inadequate responses to her interrogatories and other discovery requests. Id. at 8; see generally id. at 22-28. For example, plaintiff argues that Mr. McDonald deemed her qualified for a Community Manager position, and because Archstone “did not submit any affidavit or certified paper to refute [his] statement,” Pl.‘s Reply at 25, Archstone concedes all of her Requests for Admission propounded on February 2, 2012, see Pl.‘s Mem., Ex. O, including its рurported “admissions” that it hired younger applicants to fill the positions for which plaintiff applied, and that its hiring decisions were based solely on plaintiff‘s age. See generally id., Ex. O (Def.‘s Resp. and Objections to Pl.‘s Req. for Admis. Nos. 27-169). She further contends that, because of Archstone‘s alleged violations of court orders and rules of civil procedure, plaintiff posits that “[n]o sanction short of summary judgment will allow [her] to recover her loss.” Pl.‘s Mem. at 9.
There are two glaring deficiencies with plaintiff‘s argument. First, plaintiff offers only speculation, and fails to point to any material in the record of this case to support her assertions of Archstone‘s supposed misdеeds or Mr. McDonald‘s determination that plaintiff was qualified for a Community Manager position. Second, plaintiff‘s discovery disputes are not properly entertained at this stage of the proceedings. The Court afforded the parties two different means by which to address their discovery disputes—referral to Magistrate Judge Kay on October 6, 2009 and referral to the Circuit Executive for mediation on October 20, 2011—yet the plaintiff did not take full advantage of either opportunity. The plaintiff failed to appear for the hearing she sought before Magistrate Judge Kay, see Order to Show Cause, November 23, 2009 [ECF No. 81] at 2, and she abandoned mediation, see Joint Rеsponse to Order for Mediation Status Report [ECF No. 107]. To the extent that plaintiff relies on Archstone‘s responses—or lack of responses—to discovery requests propounded in February 2012, her reliance is misplaced. The last scheduling order in effect [ECF No. 38] set September 28, 2009, as the discovery deadline; the deadline was extended once, to October 30, 2009 [ECF No. 55]. There was no scheduling order in effect in February 2012, and Archstone violated no court order in declining to respond to plaintiff‘s requests for admissions.6 Archstone conceded nothing.
Furthermore, plaintiff еxpressed her interest in any open position at Archstone for roughly a one-year period, without demonstrating that she is qualified for the myriad positions for which she purportedly considered herself an active candidate. For example, plaintiff asked “to be considered for . . . Resident Concierge, Assistant Community Manager and Community Manager,” Pl.‘s Mem. at 16, or any of “the over 100 positions that Archstone advertised,” id. at 17, yet in her motion she points to no materials in the record to identify these positions and or to demonstrate her qualifications for any of these positions. Nor does plaintiff dispute the Taleo determination that she did not meet the minimum qualifications for the Community Manager and Assistant Community Manager positions for which she applied on November 2, 2006.
Plaintiff sincerely may believe that Archstone did not hire her because of her age. Her belief coupled “with unsupported speculation or allegations of discrimination,” Shumpert v. Mancor Carolina, Inc., Nо. 300248022, 2004 WL 3583987, at *5 (D.S.C. Mar. 20, 2004), however, cannot defeat Archstone‘s adequately supported cross-motion for summary judgment. In light of plaintiff‘s failure to show through the introduction of admissible evidence a genuine issue of material fact that Archstone‘s stated reasons are false and that a discriminatory reason motivated its actions, there is not sufficient evidence from which a reasonable jury could find that Archstone‘s stated reasons for its hiring decisions were pretext for age discrimination. “Short of finding that the employer‘s stated reason was indeed a pretext, however—and here one must beware of using 20/20 hindsight—the court must respect the employer‘s unfettered discrеtion to choose among qualified candidates.” Fischbach v. District of Columbia Dep‘t of Corr., 86 F.3d 1180, 1183 (D.C.Cir.1996). Accordingly, plaintiff‘s motion will be denied, and Archstone‘s cross-motion for summary judgment will be granted.
III. CONCLUSION
Archstone has articulated a legitimate nondiscriminatory reason for its decision not to hire plaintiff, and plaintiff has not rebutted Archstone‘s showing. Accordingly, the Court will grant summary judgment for Archstone. An Order accompanies this Memorandum Opinion.
RICHARD W. ROBERTS
District Judge
Kate CROWLEY, Plaintiff, v. Janet A. NAPOLITANO, Secretary, U.S. Dep‘t of Homeland Security, Defendant.
Civil Action No. 12-976(JEB).
United States District Court, District of Columbia.
Feb. 27, 2013.