Iyoha v. Architect of the Capitol ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
SUNDAY IYOHA, )
)
Plaintiff, )
)
v. ) Civil Action No. 15-324 (RBW)
)
ARCHITECT OF THE CAPITOL, )
)
Defendant. )
__________________________________________)
MEMORANDUM OPINION
The plaintiff, Sunday Iyoha, brings this civil action against the defendant, the Architect of
the Capitol (the “Architect”), asserting claims of discrimination, retaliation, and hostile work
environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 to -7
(2012) (“Title VII”), as applied to Congressional agencies like the Architect through the
Congressional Accountability Act, 2 U.S.C. § 1408 (2012). See Complaint (“Compl.”) ¶¶ 1, 52–
58. Specifically, the plaintiff alleges that the Architect unlawfully discriminated against him on
the basis of his race and national origin and retaliated against him for engaging in prior protected
activity by not selecting him for a supervisor position on two separate occasions. See id. ¶¶ 42–
50; see also Supplemental Complaint Pursuant to Rule 15(d) (“Suppl. Compl.”) ¶¶ 10–20.
Currently before the Court are the Defendant’s Motion for Summary Judgment (“Def.’s Mot.”)
and the Plaintiff’s Motion for Oral Argument on Defendant’s Motion for Summary Judgment or
for Leave to File a Sur[-]reply (“Pl.’s Mot.”). Upon careful consideration of the parties’
submissions,1 the Court concludes for the reasons set forth below that it must deny the plaintiff’s
1
In addition to the filings previously identified, the Court considered the following submissions in reaching its
decision: (1) the defendant’s Memorandum of Points & Authorities in Support of Defendant’s Motion for Summary
(continued . . .)
motion for oral argument and grant the defendant’s motion for summary judgment.
I. BACKGROUND
The plaintiff, who “is black and of Nigerian descent,” Compl. at 1, is a current employee
of the Architect in the Project Management Branch of the Information Technology Department
(the “Department”), see id. ¶¶ 4, 8, 22, which, during the relevant time frame, “was led by Chief
Information Officer Jay Wiegmann,” Def.’s Mem. at 2, and Angela Clark, the Deputy Chief
Information Officer, see id. Between 2008 and October 4, 2012, the plaintiff worked as an
Information Technology Help Desk Manager, see Compl. ¶ 8; see also Pl.’s Facts ¶ 1, and on
October 5, 2012, Wiegmann and Clark reassigned the plaintiff “to a Project Management
[p]osition under the Project Management Branch,” Pl.’s Facts ¶¶ 12, 14, as part of a
“reorganiz[ation of] the Help Desk and other IT support functions,” Compl. ¶ 19. As a result of
this reassignment, and because of various discriminatory remarks purportedly made by
Wiegmann and Clark, see Pl.’s Facts ¶¶ 12–18, 25–48 (discussing negative remarks about
individuals who speak with accents such as the plaintiff), the plaintiff, in February 2013, filed a
complaint with the Office of Compliance, primarily challenging his reassignment, see Compl.
¶ 27; see also Pl.’s Facts ¶ 15.
On June 7, 2013, a hearing officer “conclude[d] that [the] plaintiff [was] entitled to
judgment on [his] claim of discrimination based on national origin resulting” from the Help Desk
Manager position. Pl.’s Opp’n, Exhibit (“Ex.”) 8 (Office of Compliance Final Order (“OOC
(. . . continued)
Judgment (“Def.’s Mem.”); (2) the Defendant’s Statement of Material Facts as to Which There Is No Genuine Issue
(“Def.’s Facts”); (3) the Plaintiff’s Opposition to Summary Judgment (“Pl.’s Opp’n”); (4) the Corrected Plaintiff’s
Local Rule 7(h)(1) Statement of Material Facts Showing Genuine Issues Necessary to Be Litigated (“Pl.’s Facts”);
(5) the Plaintiff’s Local Rule 7(h)(1) Response to Defendant’s Statement of Material Facts to Which Defendant
Claim[]s There Is No Genuine Issue (“Pl.’s Resp.”); (6) the Reply in Support of Defendant’s Motion for Summary
Judgment (“Def.’s Reply”); (7) the Defendant’s Opposition to Plaintiff’s Motion for Oral Argument or for Leave to
File a Sur-reply (“Def.’s Opp’n”); and (8) the Reply to Plaintiff’s Motion for Oral Argument or, in the Alternative,
for Leave to File a Sur-reply (“Pl.’s Reply”).
2
Final Order”)) at 2. Specifically, the hearing officer concluded that the record indicated that the
reorganization “was [not] an established plan at all, other than to move those with foreign
accents to less customer-facing positions.” Id., Ex. 8 (OOC Final Order) at 30 (footnote
omitted); see also id., Ex. 8 (OOC Final Order) at 26 (noting that several witnesses “testified that
they heard Wiegmann repeatedly make disparaging comments aloud in meetings criticizing
employees with foreign accents”). Based on this finding, the hearing officer awarded the
plaintiff $30,000 in compensatory damages. See id., Ex. 8 (OOC Final Order) at 37. On July 30,
2014, upon the Architect’s petition for a review of the hearing officer’s decision, the Board of
Directors of the Office of Compliance “affirm[ed] the [h]earing [o]fficer’s finding of national
origin discrimination.” Id., Ex. 21 (Office of Compliance Decision of the Board of Directors
(“BOD Decision”)) at 1.
Subsequently, in 2014, the plaintiff applied and interviewed for the Branch Chief position
in the Department’s Production Management Branch. See Def.’s Facts ¶ 2; see also Pl.’s Resp.
¶ 2 (not disputing this fact). This Branch Chief was “responsible for [Architect]-wide support of
server and network infrastructure as well as desktop and mobile endpoints, including evaluating
and introducing new hardware, software, and technologies.” Pl.’s Opp’n, Ex. 46 (Vacancy
Announcement) at 3 (listing primary duties). Clark was the selecting official for the position,
and she designated herself, Wiegmann, Peggy Hernandez, and Luis Rosario as panelists who
would participate in the interview process. See Pl.’s Facts ¶¶ 105–08. The plaintiff was not
selected for this position, see Def.’s Facts ¶ 3; see also Pl.’s Resp. ¶ 3 (not disputing this fact);
rather, Clark selected Teddy Tseng, who “is Taiwanese and speaks with an accent,” Def.’s Facts
¶ 4; see also Pl.’s Resp. ¶ 4 (noting that Tseng “comes from [ ] Taiwan” and not disputing that he
speaks with an accent). In 2015, the plaintiff applied and interviewed again for the same
3
position. See Def.’s Facts ¶ 8; see also Pl.’s Resp. ¶ 8 (not disputing this fact). For this
selection, Clark remained the selecting official, but she divided the interview process into two
rounds. See Def.’s Facts ¶ 9; see also Pl.’s Resp. ¶ 9(h) (not disputing this fact). Clark
designated herself, Hernandez, Billy Louis, Lynn Marino, and Gus Kotting as the panelists for
the first round of interviews. See Def.’s Facts ¶ 9; Pl.’s Resp. ¶¶ 8–9 (not disputing these facts).
The plaintiff was not selected to proceed to the second round of interviews because each of the
panelists scored him lower than the top three candidates, one of whom spoke with an accent. See
Def.’s Facts ¶¶ 9–10; see also Pl.’s Resp. ¶¶ 9–10 (not disputing these facts).
On March 5, 2015, the plaintiff filed this civil action, asserting that the Architect denied
him the Branch Chief position in 2014 “because of his race, national origin[,] and/or prior
protected activity,” Compl. ¶ 53, and that Wiegmann’s and Clark’s alleged discriminatory
conduct constituted a hostile work environment, id. ¶ 57. Thereafter, the plaintiff filed a
Supplemental Complaint, alleging the same claims based on his second non-selection by the
Architect in 2015. See generally Suppl. Compl. At a post-discovery status conference held on
November 2, 2016, the plaintiff orally requested to voluntarily dismiss without prejudice his
claims of discrimination on the basis of his race and hostile work environment as alleged in his
Complaint, which the Court granted. See Min. Order (Nov. 3, 2016). The Architect then moved
for summary judgment on the grounds that the plaintiff “does not have sufficient countervailing
evidence of [national origin] discrimination or retaliation to require a trial,” and therefore,
“summary judgment in its favor” is warranted. Def.’s Mem. at 1. The plaintiff opposes the
Architect’s motion, and after briefing on the Architect’s motion was complete, the plaintiff filed
a Motion for Oral Argument on Defendant’s Motion for Summary Judgment or for Leave to File
a Sur[-]reply. See generally Pl.’s Mot. This opinion resolves these motions.
4
II. STANDARDS OF REVIEW
A. Motion for Oral Argument/Leave to File a Sur-reply
It is within the “sole discretion of the [C]ourt” whether to allow an oral argument on a
motion for summary judgment. Spark v. Catholic Univ. of Am., 510 F.2d 1277, 1280 (D.C. Cir.
1975); see LCvR7(f). Generally, a court will grant a motion for oral argument only if it requires
further evidence or extrapolation to reach a decision on the issue before it. See Spark, 510 F.2d
at 1280 (finding that granting the plaintiff’s motion for oral argument would not have “produced
any further evidence to enable the District Court to find federal jurisdiction”).
Furthermore, a court will grant a motion for leave to file a sur-reply if “the party making
the motion would be unable to contest matters presented to the court for the first time in the
opposing party’s reply.” Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001); see also
Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003). In any event, although
“sur[-]replies are generally disfavored,” Kifafi v. Hilton Hotels Ret. Plan, 736 F. Supp. 2d 64, 69
(D.D.C. 2010), aff’d, 701 F.3d 718 (D.C. Cir. 2012), “[t]he decision to grant or deny leave to file
a sur-reply is committed to the sound discretion of the Court,” Lu v. Lezell, 45 F. Supp. 3d 86,
91 (D.D.C. 2014). If new arguments appear for the first time in a movant’s reply, granting leave
to file a sur-reply is appropriate. See Flynn v. Veazey Constr. Corp., 310 F. Supp. 2d 186, 189
(D.D.C. 2004). But, such arguments “must be truly new.” United States ex rel. Pogue v.
Diabetes Treatment Ctrs. of Am., Inc., 238 F. Supp. 2d 270, 277 (D.D.C. 2002). “Simply put, a
sur[-]reply is not a vehicle for rehashing arguments that have already been raised and briefed by
the parties. Were that not true, briefing would become an endless pursuit.” Crummey v. Soc.
Sec. Admin., 794 F. Supp. 2d 46, 63 (D.D.C. 2011), aff’d, No. 11-5231, 2012 WL 556317 (D.C.
Cir. Feb. 6, 2012).
5
B. Motion for Summary Judgment
Before granting a motion for summary judgment pursuant to Federal Rule of Civil
Produce 56, a court must find 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). “A fact is material if it
‘might affect the outcome of the suit under the governing law,’ and a dispute about a material
fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
When ruling on a motion for summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at
255 (citation omitted). “Credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment . . . .” Id. The movant has the burden of demonstrating the
absence of a genuine issue of material fact and that the non-moving party “fail[ed] to make a
showing sufficient to establish the existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
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) (citation and internal quotation marks omitted). Moreover, “[t]he mere existence of a
6
scintilla of evidence in support of the [non-moving party’s] position [is] insufficient” to
withstand a motion for summary judgment, but rather “there must be [some] evidence on which
the jury could reasonably find for the [non-movant].” Id. at 252.
III. ANALYSIS
A. The Plaintiff’s Request for Oral Argument or for Leave to File a Sur-reply
The plaintiff “request[s] oral argument to assist the Court in identifying the numerous
instances in which the Architect,” in its reply in support of its motion, “has either prompted the
Court to apply inferences in its own favor, mischaracterized the record, or failed to respond to
the substance of [his] factual and legal arguments.” Pl.’s Reply at 1 (asserting that oral argument
would promote judicial economy). However, the Court does not find that oral argument is
warranted, as “[n]o showing has been made that an oral hearing would . . . produce[] any further
evidence to enable the . . . Court to” resolve the Architect’s motion for summary judgment.
Spark, 510 F.2d at 1280. The plaintiff had ample opportunity, in the form of his opposition, to
respond to the Architect’s summary judgment motion and argue why the motion should not be
granted. And, the Court is able to resolve the motion based solely on the submissions already
submitted to it, which the plaintiff acknowledges. See Pl.’s Reply at 1 (“[The p]laintiff agrees
that the Court is more than capable of identifying all of the deficiencies in the [Architect’s]
Reply Brief.”). Therefore, the Court denies this aspect of the plaintiff’s motion for oral
argument.
Moreover, in terms of filing a sur-reply, the plaintiff has not identified any issues that
were raised for the first time in the Architect’s reply. See Robinson v. Detroit News, Inc., 211 F.
Supp. 2d 101, 113 (D.D.C. 2002) (denying a motion for sur-reply “because the proposed
sur[-]reply merely reiterate[d] arguments already made and [did] not add anything new”).
7
Rather, the plaintiff requests leave to file a sur-reply due to the Architect’s failure to respond to
his statement of material facts and the Architect’s reliance on “inferences applied in its favor.”
Pl.’s Mot. at 1. Additionally, the plaintiff “wishes to have the opportunity to address [the
Architect’s] misstatement of record evidence.” Id. at 2. But, none of these reasons serve as a
basis for granting a motion for leave to file a sur-reply. See Nix El v. Williams, 174 F. Supp. 3d
87, 92 (D.D.C. 2016) (“The purpose of a sur[-]reply is to enable the non-movant to contest
matters presented for the first time in the opposing party’s reply. A sur[-]reply may not be used
simply to correct an ‘alleged mischaracterization,’ or to reiterate arguments already made.”
(citations omitted)). Thus, because the plaintiff fails to identify new issues raised in the
Architect’s reply, the Court denies the plaintiff’s request for leave to file a sur-reply.
B. The Plaintiff’s Title VII Claims
1. Discrimination Based on National Origin
Title VII protects federal employees from discrimination on the basis of national origin,
in addition to other protected classes of federal employees. See 42 U.S.C. § 2000e–16(a) (2012).
In the absence of direct evidence of discrimination, as is the situation here, claims of
employment discrimination under Title VII are analyzed under the three-part framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Jackson v. Gonzales, 496 F.3d
703, 706 (D.C. Cir. 2007). Under this framework, the plaintiff bears the initial burden of
establishing a prima facie case of discrimination 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,
“[t]he burden then must shift to the employer to articulate some legitimate, nondiscriminatory
8
reason for the [adverse employment action].” McDonnell Douglas, 411 U.S. at 802. However,
once the employer offers a legitimate, nondiscriminatory justification for its action,
“the McDonnell Douglas framework—with its presumptions and burdens—disappears, and the
sole remaining issue is discrimination vel non.” Jackson, 496 F.3d at 707 (citation and quotation
marks omitted). Thus, after the employer makes such a showing, “the plaintiff must prove that a
reasonable jury could infer that the employer’s given explanation was pretextual and that this
pretext shielded discriminatory motives.” Id. (citation omitted).
Here, the Architect has asserted a legitimate, non-discriminatory reason for the plaintiff’s
two non-selections: that the applicants selected “were independently determined to be better
qualified than [the plaintiff] by every panelist who interviewed them.” Def.’s Mem. at 1; see id.
at 13–14 (showing tabulations of score sheet results for the plaintiff versus other candidates for
the 2014 non-selection); id. at 19–20 (showing a tabulation of score sheet results for the plaintiff
versus other candidates for the 2015 non-selection); see also Def.’s Mot., Ex. 24 (Collection of
Score Sheets for the selectee — Tseng (2014)); id., Ex. 25 (Collection of Score Sheets for the
plaintiff (2014)); id., Ex. 33 (Collection of Score Sheets for the plaintiff (2015)); id., Ex. 34
(Collection of Score Sheets for the selectee — Block (2015)). Thus, because the defendant has
asserted a legitimate, non-discriminatory reason for the plaintiff’s non-selections, the Court must
determine if “the [plaintiff] [has] produced sufficient evidence for a reasonable jury to find that
the [defendant’s] asserted non-discriminatory reason was not the actual reason and that the
[defendant] intentionally discriminated against the [plaintiff] on the basis of . . . [his] national
origin[.]” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). To make
this showing, the plaintiff may produce evidence in “any combination of (1) evidence
establishing [his] prima facie case; (2) evidence [he] presents to attack the employer’s proffered
9
explanation for its actions; and (3) any further evidence of discrimination that may be available
to [him], such as independent evidence of discriminatory statements or attitudes on the part of
the employer.” Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006).
In this case, the plaintiff does not present evidence that he was more qualified than the
candidates selected for the Branch Chief positions in either 2014 or 2015. See Pl.’s Opp’n at 21
n.5 (“The Architect argues that [the plaintiff] cannot show that he was substantially better
qualified than the selected candidates, but [the plaintiff] is not attempting to prove his case under
that route.”) Rather, the plaintiff primarily presents evidence of discriminatory animus through
disparaging remarks purportedly made by officials involved in the non-selection decisions, see
id. at 12–21, and “evidence that the selection process was manipulated to avoid hiring him,” id.
at 21 n.5 (asserting that both selection processes were “inherently unfair to him”); see also Aka
v. Wash. Hosp. Ctr., 156 F.3d 1284, 1295 (D.C. Cir. 1998) (“A plaintiff attacking a
qualifications-based explanation is of course not limited to comparing his qualifications against
those of the successful candidate[s]. The plaintiff can instead seek to expose other flaws in the
employer’s explanation.”). The plaintiff also alleges that the hiring of Tseng in 2014 and the
advancement of one candidate who spoke with an accent in 2015 was a “ploy” to conceal
discriminatory animus, see Pl.’s Opp’n at 41, and that there are adverse inferences that can be
drawn against the Architect in his favor, see id. at 44. The Court will address in turn each of the
plaintiff’s proffers of evidence that, according to him, demonstrates that the Architect’s
qualifications-based explanation for his non-selections is pretext.
a. Evidence of Discriminatory Animus Through Disparaging Remarks
Initially, to demonstrate that the Architect’s qualifications-based explanations are not the
true reasons for his non-selections in both 2014 and 2015, and that they were actually motivated
10
by discriminatory animus based on his national origin, the plaintiff identifies a number of
disparaging remarks allegedly made by various officials involved in the non-selection decisions.
See Pl.’s Opp’n at 13–21. Specifically, the plaintiff relies on comments purportedly made by
Wiegmann, Clark, and Peggy Hernandez in 2012 regarding people with accents in the
Department, specifically, “the need for people in the [Department] to speak clearly in English[,]
and derogatory comments about people in the [Department] being from different countries.” Id.
at 13; see also id. at 15 (claiming that “three out of the four panelists from the first selection had
made direct statements indicating their discriminatory animus against people who spoke with
strong foreign accents”); id. at 16 (contending that two individuals in each interview round for
the 2015 selection “had made direct statements of animus about people with accents”). The
plaintiff also asserts that, in 2011, Wiegmann requested that the plaintiff refrain from giving him
“in-person briefings on the Help Desk performance . . . because ([Wiegmann] claimed) he could
not understand [the plaintiff] when [the plaintiff] spoke,” id. at 13, and that Clark “stat[ed] that
she would not have interviewed [the plaintiff] for the position (during either of the two
selections) but for the fact that she was required to do so by [the Architect’s] personnel rule,” id.
at 14. 2
2
The plaintiff asserts that these allegedly disparaging comments are direct evidence of national origin
discrimination. See Pl.’s Opp’n at 13. However, “[t]he general rule is that ‘stray remarks,’ i.e., comments that are
not tied to the alleged adverse employment action, ‘might be probative of discrimination, but are not sufficient as
direct evidence of discrimination.’” Harris v. Wackenhut Servs., Inc., 648 F. Supp. 2d 53, 62 (D.D.C. 2009)
(quoting Isse v. Am. Univ., 540 F. Supp. 2d 9, 30 (D.D.C. 2008)). Therefore, because the majority of these
comments were purportedly made two or three years prior to the challenged adverse employment actions and thus
are not tied to those actions, they cannot serve as direct evidence of discrimination. Furthermore, although Clark’s
purported comment that she would not have interviewed the plaintiff had it not been for the Architect’s policy has
some relationship to the adverse employment actions, it also is not direct evidence of discrimination. The Court so
concludes primarily because, contrary to the plaintiff’s interpretation of Clark’s comment, see Pl.’s Opp’n at 14,
Clark represented that what she actually said was that she would not have interviewed the plaintiff based on what
she knew about his experience and résumé and the skills she was looking for in a candidate such as “hands-on
network administration experience, the background in network infrastructure, the management of the IT team
experience, and operating systems, server management, [and] systems management.” Pl.’s Opp’n, Ex. 2 (Clark’s
Deposition Transcript) at 139–40. All of which have nothing to do with the plaintiff’s national origin. In any event,
(continued . . .)
11
A plaintiff may “avoid summary judgment by presenting . . . evidence, direct or
circumstantial, that permits an inference of discrimination. Examples of such evidence include
discriminatory statements by the employer, or other attitudes suggesting the decision maker
harbors discriminatory animus.” Holcomb, 433 F.3d at 899 (internal citations omitted).
However, the alleged discriminatory statements cannot include mere “stray remarks” that have
no bearing on the adverse action being challenged. Morris v. McCarthy, 825 F.3d 658, 669
(D.C. Cir. 2016) (“[I]solated [disparaging] remark[s] unrelated to the relevant employment
decision [cannot], without more, permit a jury to infer discrimination.”); see also Simms v. U.S.
Gov’t Printing Office, 87 F. Supp. 2d 7, 9 n.2 (D.D.C. 2000) (“‘[S]tray remarks,’ even those
made by a supervisor, are insufficient to create a triable issue of discrimination where . . . they
are unrelated to an employment decision involving the plaintiff.”). Therefore, “[i]n order for [a
p]laintiff to establish discriminatory animus in an adverse employment decision . . . there must
be a clear nexus between the ‘stray workplace remark[s]’ and the adverse action[s].” Ajisefinni
v. KPMG L.L.P., 17 F. Supp. 3d 28, 44 (D.D.C. 2014) (quoting Kalekiristos v. CTF Hotel
Mgmt. Corp., 958 F. Supp. 641, 666 (D.D.C. 1997)). This nexus can be demonstrated “if the
remark[s] w[ere] made by an individual with the power to influence [the p]laintiff’s
[non-selections], and the remark[s] w[ere] temporally close in time to the [non-selections].” Id.
For several reasons, the plaintiff’s evidence of disparaging comments allegedly made by
Wiegmann, Clark, and Hernandez in 2012, see Pl.’s Opp’n at 12–21, is not sufficient to show
that the Architect’s qualifications-based explanation is pretext or that the plaintiff’s
non-selections in 2014 and 2015 were actually motivated by discriminatory animus. Contrary to
(. . . continued)
Clark’s comment does not “show[ ] a discriminatory motive on its face” or prove discrimination “without any need
of an inference.” Bhatnagar v. Sunrise Senior Living, Inc., 935 F. Supp. 2d 1, 6 (D.D.C. 2013) (quoting Davis v.
Ashcroft, 355 F. Supp. 2d 330, 340 n.2 (D.D.C. 2005) (emphasis in original)).
12
the plaintiff’s position, see Pl.’s Opp’n at 15, these alleged disparaging comments, accepted as
true as required at this stage of litigation, see Anderson, 477 U.S. at 255, do not facially give rise
to an inference of national original discrimination. Rather, these comments suggest that
Wiegmann and Clark sought to address concerns regarding effective communication within the
Department, which, as the Architect correctly notes, is a legitimate concern by an employer
assessing a skill reasonably related to an employee’s job performance. 3 See Def.’s Reply at 6
(citing cases); see also Fragante v. City & Cty. of Honolulu, 888 F.2d 591, 596–97 (9th Cir.
1989) (“An adverse employment decision may be predicated upon an individual’s accent when—
but only when—it interferes materially with job performance. There is nothing improper about
an employer making an honest assessment of the oral communications skills of a candidate for a
job when such skills are reasonably related to job performance.” (emphasis in original) (citing
Equal Employment Opportunity Commission (“EEOC”) Compliance Manual (CCH) ¶ 4035 at
3877–78 (1986))).
In any event, the plaintiff mischaracterizes the contents of several of these alleged
discriminatory comments to demonstrate ambiguity and what he perceives as discriminatory
animus. For instance, the plaintiff states that “Lynn Marino testified that both Wiegmann and
Clark made comments about people with accents in [the Department]” and that she “testified that
she had conversations in which Wiegmann and Clark spoke about people who speak English as a
3
At various points, the plaintiff asserts that “no . . . communications problems existed” in the Department. See, e.g.,
Pl.’s Opp’n at 13–14 (citing Pl.’s Facts ¶¶ 28–31). The Court is perplexed as to how this allegation has any merit,
given that the plaintiff proffers to the Court as evidence of pretext several examples of Wiegmann making allegedly
disparaging comments while addressing communication problems in the Department. See, e.g., Pl.’s Opp’n at 13
(discussing comments Wiegmann purportedly made at staff meetings regarding communication problems in the
Department). Even so, in Marino’s deposition, which the plaintiff cites as support for his position, she testified that
she “was [not] aware of specific[] help desk communication problems,” and that Wiegmann’s comments were about
“communicating clearly with customers.” Id., Ex. 19 (Marino’s Deposition Transcript) at 55–56; see also id., Ex. 19
(Marino’s Deposition Transcript) at 53:20–54:21 (noting that she did not hear Wiegmann make comments “about
people who speak with an accent” or about “people from different countries working on the help desk”).
13
Second language in the [Department].” Pl.’s Opp’n at 14 (citing to Pl.’s Facts ¶ 30). However,
according to Marino’s deposition transcript, which the plaintiff cites for this proposition, Marino
actually stated that she “remember[s] making the comment that . . . Wiegmann and . . . Clark
were discussing communication problems among the [Department’s] staff,” and that she had “a
discussion with the EEO investigators about the fact that there were people on the
[Department’s] staff who spoke English as a second language.” Id., Ex. 19 (Marino’s Deposition
Transcript) 73:2–74:8. Additionally, the plaintiff contends that Clark joined in several of
Wiegmann’s “derogatory comments about people in [the Department] being from different
countries.” Id. at 13 (citing Pl.’s Facts ¶¶ 24–37). But, nothing in the record supports the
allegation that Clark joined in any of the allegedly discriminatory comments purportedly made
by Wiegmann. See Pl.’s Facts ¶¶ 24–37.
Nonetheless, even if these allegedly discriminatory comments could be perceived as
raising an inference of national origin discrimination, see Beaver v. McHugh, 840 F. Supp. 2d
161, 172 (D.D.C. 2012) (“It is certainly true that ‘accent’ and national origin are often
intertwined, and the Court is cognizant of the fact that some unethical employers may attempt to
conceal their discriminatory actions by referencing purported communication difficulties caused
by an employee’s accent as the ‘official’ reason for an adverse employment action.” (citations
omitted)), they nonetheless are not probative of discrimination in this case because they do not
have “a clear nexus” to the plaintiff’s challenged non-selections, Ajisefinni, 17 F. Supp. 3d at 44.
Although Clark was the ultimate decision-maker regarding the plaintiff’s non-selections,
Wiegmann and Hernandez served as interview panelists for both of the plaintiff’s non-selections,
and Clark relied upon their assessments of the interviewed candidates in making the selections.
See Pl.’s Facts ¶¶ 102–08, 144–45, 171. Therefore, Wiegmann and Hernandez are “individuals
14
[who had] power to influence [the p]laintiff’s [non-selections].” Ajisefinni, 17 F. Supp. 3d at 44.
However, their alleged disparaging comments occurred two years before the plaintiff’s first
non-selection in 2014, see Pl.’s Facts ¶¶ 24–39, and given this significant gap in time between
the alleged disparaging comments and the non-selections, it cannot be plausibly said, without
more, that these alleged comments are related to the plaintiff’s non-selections, see Wang v.
Wash. Metro. Area Transit Auth., 206 F. Supp. 3d 46, 74 (D.D.C. 2016) (“Stray remarks lacking
‘any temporal or substantive relationship’ to the adverse employment action are not evidence of
discriminatory intent.” (emphasis in original) (quoting Francis v. Perez, 970 F. Supp. 2d 48, 65
(D.D.C. 2013))). Instead, the comments appear to be related to the plaintiff’s reassignment from
the Department’s Help Desk in 2012, which is not one of the adverse actions that the plaintiff
challenges in this case. See Pl.’s Opp’n at 16 (responding to the Architect’s argument that the
allegedly disparaging comments cited by the plaintiff are non-probative stray remarks by stating
that “Clark and Wiegmann acted on their opinions by removing [the plaintiff] and others from
their positions in the Production Management Branch”); see also id., Ex. 8 (OOC Final Decision)
at 26–30 (stating that the testimony of credible witnesses regarding “disparaging comments”
made by Wiegmann demonstrated evidence of discriminatory animus sufficient to create an
inference of discrimination in the reassignment).
Despite acknowledging this lapse in time, the plaintiff contends that the “length of time is
not fatal to [his] claim because Wiegmann engaged in similar discriminatory conduct in early
2014, when he embarrassed [the plaintiff] by testing his iPhone’s voice recognition system on
[the plaintiff], and then joked about it at a staff meeting,” and because “Clark told Wiegmann
that she would not have even interviewed [the plaintiff] for the 2014 selection had she not been
required to do so by [Architect] regulations.” Id. at 18. The plaintiff also argues that
15
because there was no discipline or training, and — based on their testimony — no
moment of contrition [regarding their purported earlier conduct], the [Architect]
cannot claim that Clark and Wiegmann had some intervening ‘epiphany’ moment
between the time they ejected [him] from his Help Desk Manager position and the
time of the selections at issue in the [C]omplaint.
Id.; see also id. at 18–19 (“[T]he Architect has produced no evidence or argument to suggest that
bigotry only lasts two years.” (emphasis in original)). However, like the prior allegedly
discriminatory comments, these comments do not either establish a nexus between the plaintiff’s
challenged adverse employment actions or create an inference of discrimination. Regarding
Wiegmann’s purported testing of the iPhone’s voice recognition system on the plaintiff, this
action allegedly transpired several months prior to the first adverse employment action, see id.,
Ex. 3 (Iyoha Dep.) at 110:2–111:1 (noting that this incident occurred “[m]aybe 2014 early on”);
see also id. at 7 (noting that Tseng was selected for the position in August 2014). And, even if
this action “could lead a reasonable juror to find that [Wiegmann] harbored a discriminatory
attitude toward . . . employees [with accents],” Morris, 825 F.3d at 670, the plaintiff has not
proffered any evidence to show Wiegmann’s influence in the 2014 non-selection was motivated
by national origin discriminatory bias, see id. (holding that the plaintiff “must show more than a
general bias against . . . employees [with accents]; []he must also introduce enough evidence for
a reasonable jury to find that [his non-selection] was motivated by that bias”). In addition, as the
Court already noted, Clark stated that she would not have interviewed the plaintiff for the
position in light of her knowledge of the plaintiff’s experience, his résumé, and the skills that she
was looking for in a candidate for that position. See supra Part III.B.1 n.2. Thus, this comment
does not raise an inference of discriminatory animus.
In sum, because of the significant lapse in time between when the allegedly disparaging
comments were made and the plaintiff’s two non-selections, the Court finds that these comments
16
cited by the plaintiff do not have a relationship with or nexus between the plaintiff’s two
non-selections, the “relevant [adverse] employment decision[s].” Morris, 825 F.3d at 669.
Therefore, without more, these comments qualify as stray remarks that are insufficient alone to
permit a reasonable jury to infer that the plaintiff’s two non-selections were motivated by
discriminatory animus.
b. Evidence of Inherently Unfair Interview Process
The plaintiff also asserts that “a jury could conclude that [his] failure to attain the top
score [in the interviews] was the result of Clark and Wiegmann’s discriminatory . . .
manipulation [of the interview processes], which made it impossible for [him] to prevail, despite
his qualifications.” Pl.’s Opp’n at 21. Specifically, the plaintiff contends that “the selection
process[es] relied entirely on a system that was designed by Clark, and the interview process and
the scores given to the candidates by the other panelists were heavily influenced by Clark and
Wiegmann—both of whom had exhibited discrimination against [him] in the past.” Id. at 23.
Relying on Salazar v. Washington Metropolitan Area Transit Authority, 401 F.3d 504 (D.C. Cir.
2005), and Perry v. Shinseki, 783 F. Supp. 2d 125, 139 (D.D.C. 2011), aff’d, 466 F. App’x 11
(D.C. Cir. 2012), the plaintiff provides several reasons why the interview processes were
inherently unfair to him, which can be categorized as challenges based on (1) the selection of
interview panelists and the improper influence of their scoring of candidates, (2) the questions
and form of the interview processes, and (3) the unfairly scoring of the plaintiff. See id. at 21–
42.
i. The Plaintiff’s Reliance on Salazar and Perry
Before addressing these separate challenges, the Court must first address the plaintiff’s
reliance on Salazar and Perry. In Salazar, the plaintiff, “a Peruvian-born Latino” who alleged
17
discrimination and retaliation regarding five promotion denials for entry-level supervisory
positions, see 401 F.3d at 506–07, challenged “the specific process used by WMATA in
selecting a candidate,” id. at 508 (emphasis in original). In particular, the plaintiff alleged that,
prior to the fifth promotion application process, “he [had] contacted . . . the Deputy General
Manager at Metro, and asked him to ensure that . . . the Superintendent for Plant Equipment
Maintenance[] would not select the members of the interview panel” because the Superintendent
“discriminated against Latinos.” Id. at 506. In response, the Deputy General Manager indicated
that he would select the three panelists. See id. In reversing the district court’s grant of
summary judgment in favor of WMATA, the Circuit held that, “[al]though it [was] a close call,
. . . a reasonable jury could find pretextual WMATA’s assertion that it employed a fairly
administered selection process with regards to the Metro Center Job.” Id. at 509. The Circuit
reached this conclusion because the Deputy General Manager “promised [the plaintiff] a panel
that [the Superintendent] would have no hand in selecting. Yet [the Superintendent] ended up
appointing [his assistant and close friend] as the panel’s chair and even helped determine the
weights of the questions.” Id. at 508. Thus, the Court reasoned that “[t]he jury could base this
determination on [the Superintendent’s] unexplained participation—despite [the Deputy General
Manager’s] assurances—that in turn led to the appointment of [the Superintendent’s assistant and
close friend] and the development of the interview agenda, including the weights of the
questions.” Id. at 509; see also id. (noting that “a jury could infer something ‘fishy’ from the fact
that [the official] placed himself squarely at the center of a[n] [interview] process designed to
exclude him”).
In Perry, the plaintiff alleged that her employer discriminated against her on the basis of
her race and age when her employer failed to select her for a supervisory position and instead
18
selected a candidate whom the plaintiff believed was less qualified. See 783 F. Supp. 2d at 128–
32. Regarding the selection process, the plaintiff “suggest[ed] that the [defendant’s] explanation
[was] pretext because” the officials who selected the interview panelists “‘steer[ed] the position’
to [the chosen candidate] by means of a ‘fishy’ selection process.” Id. at 138 (fourth alteration in
original) (citation omitted). In granting summary judgment for the defendant, another member
of this Court held that the plaintiff had failed to “present evidence that the changes in procedure
were inherently discriminatory,” and therefore, “no reasonable jury could infer that the process
was so ‘inherently suspicious’ as to raise an inference of discrimination.” Id. at 139–40 (mainly
relying on Salazar as support for its conclusion that the plaintiff did not produce sufficient
evidence).
The Court finds that the facts in this case are distinguishable from the facts in Salazar.
First, the ruling in Salazar, which the Circuit noted was a “close call,” 401 F.3d at 509, “turned
on [the] fact . . . [that] the plaintiff in Salazar had been promised ‘a panel that [a particular
supervisor] would have no hand in selecting.’” Bailey v. Wash. Metro. Area Transit Auth., 810
F. Supp. 2d 295, 308 (D.D.C. 2011) (emphasis added) (third alteration in original) (quoting
Salazar, 401 F.3d at 508). Thus, that was a situation where the employer “deviated from its
normal appointment process in response to [the plaintiff]’s concerns.” Salazar, 401 F.3d at 508.
Although, like in Salazar, the plaintiff in this case alleges that Wiegmann and Clark, who was the
selecting official, had discriminated against him in the past, see generally Compl., unlike in
Salazar, the plaintiff has not alleged or presented any evidence indicating that he was promised
that Clark or Wiegmann “would have no hand in selecting” the interview panelists, 401 F.3d at
508.
Furthermore, contrary to the plaintiff’s contention, Perry offers less support for the
19
plaintiff’s allegations that the interview processes were unfair, raising inferences of
discrimination. See Pl.’s Opp’n at 23 (arguing that “[a]lthough the [d]istrict [c]ourt in Perry
granted summary judgment [in favor of the employer], in this case each of the factors that helped
the employer in Perry, favor and support [his] claims”). Relying on Perry, the plaintiff asserts
that “Wiegmann and Clark were ‘squarely at the center’ of both of the selection processes, and
unfairly manipulated the selection to [his] distinct disadvantage, and their conduct otherwise
raises question [about] the inherent credibility of the process.” Id. But, in Perry, the court’s full
statement was that there was “no indication that [the selecting official] ‘placed h[er]self squarely
at the center of a process designed to exclude [her].’” 783 F. Supp. 2d at 139 (second and third
alterations in original) (quoting Salazar, 401 F.3d at 509). Thus, the court in Perry recognized
the distinction the Salazar court made, that being, the selecting official who had been previously
accused of discrimination intentionally intervened in the interview process, even though the
interview process was specifically designed to exclude them. See Perry, 783 F. Supp. 2d at 139
(citing Salazar, 401 F.3d at 509). Accordingly, the Court does not find the circumstances in
either Salazar and in Perry comparable to the circumstances in this case.
ii. The Selection and Alleged Improper Influence of Interview Panelists
The plaintiff contends that a “jury could conclude that Clark chose the interview panelists
in an effort to avoid selecting [the plaintiff] and candidates from different national origins or who
spoke with noticeable foreign accents.” Pl.’s Opp’n at 26. Specifically, the plaintiff argues that
“Clark included people who would naturally avoid hiring [the plaintiff] or who[m] she could
control and influence.” Id. at 24. The Court disagrees.
For the plaintiff’s first non-selection in 2014, the panelists included Clark, Wiegmann,
Hernandez, and Rosario. See id. at 24. The plaintiff asserts that the inclusion of Wiegmann and
20
Hernandez as panelists “hurt” his chances of being selected because they had previously made
derogatory comments about him and others who spoke with accents. Id. But, as the Court
previously discussed, the approximately two-year gap in time between when the derogatory
comments were allegedly made and the plaintiff’s non-selection in 2014 preclude any inference
that this non-selection was motivated by discriminatory animus. See supra Part III.B.1.a.
Moreover, Rosario is a member of the plaintiff’s protected class, as he speaks English as a
second language and speaks with an accent. See Def.’s Mot., Ex. 21 (Rosario Dep.) at 22:15–
23:5, 131:10–12; see also 29 C.F.R. § 1606.1 (“The [EEOC] defines national origin
discrimination broadly as including, but not limited to, the denial of equal employment
opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an
individual has the physical, cultural or linguistic characteristics of a national origin group.”).
More importantly, the candidate selected, Tseng, is a member of the plaintiff’s protected class
because he is an individual of foreign national origin and who speaks with a noticeable accent.
See Def.’s Mem. at 1. Thus, Tseng’s selection weighs strongly against an inference that Clark
was motivated by any discriminatory animus. See Murray v. Gilmore, 406 F.3d 708, 715 (D.C.
Cir. 2005) (noting that “a [selection] within the same protected class cuts strongly against any
inference of discrimination”); see also Almutairi v. Int’l Broad. Bureau, 928 F. Supp. 2d 219,
233 (D.D.C. 2012) (“The failure-to-hire context seems particularly unlikely to yield a situation
where an employer rejects a person on a prohibited basis, yet hires someone else from the same
protected class. If an employer rejects someone because he has dark skin or because he is not
Lebanese, it is hard to imagine the employer simultaneously filling the spot with someone else
with those some scorned characteristics.”). Thus, the Court does not find this argument by the
plaintiff persuasive.
21
In addition, the plaintiff contends that “Clark testified . . . that she chose Rosario and
Hernandez specifically because neither of them had relevant [i]nformation [t]echnology
knowledge or experience,” which a jury could conclude was “because they could be easily
influenced in how they scored the candidates.” Pl.’s Opp’n at 24. The plaintiff also claims that
Wiegmann “duped these non-technical panelists into believing that [the plaintiff’s responses] to
technical questions were not accurate or good.” Id. at 30 (asserting that Rosario and Hernandez
asked for clarification on the quality of technical responses and that they gave him identical or
similar scores for the two technical questions as Wiegmann and Clark gave). But, Clark was
required only to select a panel that was comprised of “at least two subject matter experts and/or
stakeholders who are knowledgeable of the position to be filled.” See Def.’s Mot., Ex. 19
(Career Staffing Plan) ¶ 20.10.2. Although neither Hernandez nor Rosario had a background in
information technology, they were knowledgeable about the position the plaintiff sought because
they were “customers” of the Department. See Pl.’s Opp’n, Ex. 2 (Clark Dep.) at 145:7–146:12.
And, contrary to the plaintiff’s position, see Pl.’s Opp’n at 30, the record indicates that the
panelists gave their scores prior to the panel’s discussions regarding the quality of the
candidate’s technical responses, see Pl.’s Opp’n, Ex. 2 (Clark Dep.) at 159:15–160:2
(commenting that she wanted the discussion to occur after the collection of the scores so that
“the scores [would not] be influenced by the discussion”); see also id., Ex. 1 (Wiegmann’s Dep.)
at 159:3–4 (stating that “everybody did their scores before the discussions ensued”); Pl.’s Facts
¶¶ 121–23. Thus, based on the record before it, the Court is not convinced that the plaintiff’s
speculative allegations of purported collusion raise an inference of discrimination. 4
4
The Court’s reasoning here is also applicable to the plaintiff’s claims that “Kotting and Hernandez were open to
influence by Clark” in regards to his 2015 non-selection, given their lack of information technology background and
ability to “understand some of the technical questions.” Pl.’s Opp’n at 31.
22
Regarding his non-selection in 2015, the panelists for the first round of interviews were
Clark, Hernandez, Billy Louis, Marino, and Gus Kotting. Pl.’s Opp’n at 24. The plaintiff lodges
different claims as to why each of these panelists should not have been included. See id. at 24–
26. In regards to Hernandez and Clark, the plaintiff asserts that including Hernandez “was unfair
to [him] because she had already turned him down once for the position and . . . could be
expected to do the same again,” id. at 24, and that Clark’s participation in both rounds of the
interview “eliminated the benefit of having an independent panel consider the first pool of
candidates,” id. at 26. But, the plaintiff cites no factual or legal authority or even an Architect
policy that precludes the participation of a panelist from a prior interview process or the selecting
official, see id. at 24–26, and the Court sees no reason why such individuals would need to be
precluded, particularly given that they collectively selected a candidate from the plaintiff’s
protected class prior to the interview for the position in 2015.
Moreover, the plaintiff contends that Kotting “was not eligible to interview candidates for
a GS-14 position” because he was a GS-13 employee, and because of his selection as a member
of the panel for the first round of interviews, a jury could “conclude that Clark wanted Kotting
on the panel because he worked closely with . . . Rosario, who had been a panelist on the first
selection” panel. See id. at 25. The plaintiff also argues that Marino was inappropriate to
include on this panel because she was aware of his reassignment and his complaint against Clark
and Wiegmann for discrimination. See id. at 25–26. Additionally, the plaintiff claims that
“Clark included Louis as a panelist because she believed that Louis would not be inclined to
select [him],” as “Louis[, who] was (and remains) [the plaintiff’s] supervisor, . . . [had] issued
[the plaintiff a] . . . ‘counseling memo[randum].’” Id. at 25. However, even accepting the
plaintiff’s allegations as true, he has failed to provide any evidence of how Kotting, Marino, or
23
Louis would be inclined not to select him for the position because he spoke with an accent. 5
Accordingly, the Court does not find that this proffered evidence permits a reasonable jury to
infer that the plaintiff’s non-selections were motivated by discriminatory animus. 6
iii. The Questions Asked During the Interview Processes
The plaintiff argues that Clark unfairly designed the interview processes for both
non-selections to include questions that disadvantaged him. See Pl.’s Opp’n at 26–30.
Specifically, the plaintiff contends that Clark excluded questions that would have elicited
“aspect[s] of the position[s] that played to his strengths,” id. at 26 (asserting that Clark did not
include questions on “overseeing the [Department’s] Help Desk, inventory management[,] and
[information technology] asset management,” which she stated were “the primary duties for the
[interviewed] position”), and “included questions that . . . she knew would work to his
detriment,” id. at 27 (including a question about how the candidates kept their information
technology skills updated, even though she purportedly denied the plaintiff’s recent request for
5
The plaintiff misconstrues the evidence in the record that allegedly supports his position with respect to Louis. For
instance, the plaintiff claims that Clark “denied any involvement with the counseling memorandum,” Pl.’s Facts ¶
75, and therefore, she allegedly “misrepresented her involvement in the [c]ounseling [m]emorandum (to hide her
unlawful animus toward [the plaintiff]). See Pl.’s Opp’n at 25. However, Clark stated that she did not remember if
Louis had issued the counseling memorandum, that she did not recall seeing the memorandum, and that she was not
involved in drafting the memorandum. See id., Ex. 2 (Clark’s Dep.) 249–50. Thus, contrary to the plaintiff’s
contention, see id. at 25, Louis’s testimony is consistent with Clark’s because he testified that Clark had no
involvement with drafting the counseling memorandum, that Clark was part of a discussion prior to the issuance of
the memorandum, and that the outcome of the discussion was to proceed with issuing the memorandum. See id.,
Ex. 15 (Louis’s Dep.) at 69:2–70:1, 75:5–22 (noting that Clark was not involved in the issuance of the
memorandum).
6
In a last yet unsuccessful attempt, the plaintiff contends that there are issues of material fact for a jury to decide.
See Pl.’s Opp’n at 32. For his non-selection in 2015, the plaintiff claims that there is conflicting testimony as to
whether there was a pre-interview meeting to determine a “consensus” on what the panel was looking for in the
candidates’ answers. Id. The plaintiff also claims that there is conflicting testimony on whether the panelists had a
discussion before the scores were submitted. Id. The Court notes that the plaintiff’s arguments here conflict with
his statement of facts, which does not support his propositions. Compare Pl.’s Opp’n at 32, with Pl.’s Facts ¶¶ 160–
64 (citing deposition testimony). In any event, the Court does not find these contentions sufficient to defeat
summary judgment, as the plaintiff has not proffered evidence that these actions constitute discrimination on the
basis of his national origin.
24
such training). 7 The plaintiff also claims that Clark asked subjective questions without any
guiding factors, see id. at 28, and that she included a two minute “elevator-speech” question that
“disadvantaged people who spoke with strong accents,” id. at 29.
The plaintiff’s allegations regarding the questions asked during the interview processes
would not permit a jury to reasonably infer that his non-selections were motivated by national
origin discriminatory animus. See Paulk v. Architect of the Capitol, 79 F. Supp. 3d 82, 87
(D.D.C. 2015) (“[C]harges of unfairness, no matter how well-founded, do not by themselves
prove unlawful discrimination.”). There is no dispute that each of the candidates interviewed
was interviewed by the same panelists and was asked the same questions, see generally Pl.’s
Opp’n (not challenging these facts), and thus, each candidate was provided the same opportunity
to highlight his or her professional strengths. 8 See Bell v. Donley, 928 F. Supp. 2d 174, (D.D.C.
2013) (“[A]ll of the candidates . . . were subjected to the same interview process and ratings
formula, which refutes any notion of unique ‘irregularity’ in connection with . . . [the] interview
process [warranting an inference of discrimination].”). In addition, there is nothing inherently
discriminatory about the two-minute “elevator-speech” question used to test the candidate’s
ability to communicate. See Pl.’s Opp’n, Ex. 15 (Louis Dep.) 154:3–8 (stating that the
7
Opposite to what the plaintiff claims, see Pl.’s Opp’n at 27, the record indicates that this request for informational
technology training was denied over two months after Clark posed the skills-related question during the plaintiff’s
interview in 2014, compare Def.’s Mot., Ex. 37 (Plaintiff’s Response to Defendant’s Second Set of Interrogatories
and Second Set of Requests For the Production of Documents) at 7 (noting that the request was denied on August
26, 2014), with id., Ex. 22 (Collection of interview notes for the plaintiff) at 2 (noting that the plaintiff’s interview
was on June 16, 2014), and over a year before the plaintiff’s interview in 2015, compare Def.’s Mot., Ex. 37
(Plaintiff’s Response to Defendant’s Second Set of Interrogatories and Second Set of Requests For the Production of
Documents) at 7, with id., Ex. 33 (Collection of interview notes for the plaintiff) at 2 (noting that the plaintiff’s
interview was on November 30, 2015).
8
The plaintiff argues that “Clark did not regularly ask the question about [information technology] skills in this
way.” Pl.’s Opp’n at 27 (arguing that Clark knew that the information technology skills questions were posed
awkwardly so that it would disadvantage the plaintiff). However, this argument is a red herring and undoubtedly
without merit, as the plaintiff cites an information technology skills question posed in an interview for an entirely
different position. See id. The plaintiff points to no legal or factual authority that requires an employer to ask the
same question in every interview for each position that it seeks to fill.
25
elevator-speech question was designed “to show whether the [candidate] is poised; ability to
think on their feet. Articulation is part of that; you know, being able to express themselves in a
concise way and have the ability to showcase their knowledge, skills, and ability”). And, as the
Architect notes, candidates who spoke with an accent, like the plaintiff, actually scored well on
this question. See Def.’s Reply at 20 (discussing scores on the elevator-speech question given to
other candidates who spoke with an accent). Thus, “absent [some] demonstrably discriminatory
motive,” which the plaintiff has not presented evidence to support regarding these allegations of
unfairness, the Court declines to “second-guess” the Architect’s selection of the questions posed
to the candidates. Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.D.C. 1996).
Moreover, “[t]he use of subjective questions during an interview . . . does not alone
establish a pretext.” Brown v. Small, No. 05-1086 (RMU), 2007 WL 158719, *7 n.3 (D.D.C.
Jan. 19, 2007) (“Absent any additional [credible] evidence or argument of a discriminatory
motive, the court declines to make the inferential leap required to conclude that the panel utilized
subjective scoring to intentionally discriminate against the plaintiff.”). And, even though “an
employer’s heavy use of ‘highly subjective’ criteria . . . could support an inference of
discrimination,” that inference generally develops in cases where “the plaintiff was otherwise
significantly better qualified than the successful applicant.” Aka, 156 F.3d at 1298 (“[A]lthough
employers may of course take subjective considerations into account in their employment
decisions, courts traditionally treat explanations that rely heavily on subjective considerations
with caution. Particularly in cases where a jury could reasonably find that the plaintiff was
otherwise significantly better qualified than the successful applicant, an employer’s asserted
strong reliance on subjective feelings about the candidates may mask discrimination.”). Again,
the plaintiff does not contend that he was significantly more qualified than the selectees, see Pl.’s
26
Opp’n at 21 n.5, nor has he cited “any evidence suggesting that [Clark] relied upon any highly
subjective criterion, such as ‘interpersonal skills,’” Fischbach, 86 F.3d at 1184. Accordingly, a
reasonable jury could not find that the questions used during the interview processes raise an
inference of discrimination against the plaintiff.
iv. The Alleged Unfair Scoring of the Plaintiff
Additionally, the plaintiff argues that he received unfair scores in both of the application
processes, which, according to him, demonstrates that the Architect’s qualifications-based
explanation is pretextual. See Pl.’s Opp’n at 32–40. In his attempt to demonstrate that the Court
must find that an inference of discrimination for his non-selections exist, the plaintiff dives into
comparisons of the scores he received on various questions posed during both interview
processes, subjectively asserting that he should have received higher scores because he gave
better responses. See id. at 33–40 (reconstructing the panelists’ notes on the candidates’
responses during the interviews). For the reasons provided below, the Court does not find that
these comparisons create an inference from which a reasonable jury could conclude that the
plaintiff was not selected for the positions on either occasion because of his national origin.
For the purpose of determining whether the Architect’s qualifications-based explanation
is pretextual, “it is the perception of the decision maker which is relevant, not the self-assessment
of the plaintiff.” Hairston v. Vance-Cooks, 773 F.3d 266, 273 (D.C. Cir. 2014) (quoting Vatel v.
All. of Auto. Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011)). Consequently, the “plaintiff’s
personal evaluation of his own . . . performance is insufficient to rebut [the Architect’s]
legitimate, non-discriminatory reason for his non-selection[s].” Ficken v. Clinton, 771 F. Supp.
2d 79, 84 (D.D.C. 2011) (citing cases). Even so, as the Architect notes, see Def.’s Reply at 21,
the plaintiff’s subjective analysis primarily compares his responses and the corresponding scores
27
he received for those responses with the responses and corresponding scores received by the
candidates who were not selected for either of the positions in 2014 or 2015, see Pl.’s Opp’n at
33–40. Such evidence can hardly be said to be helpful in assisting the Court in determining
whether a reasonable jury could find that the Architect’s legitimate, non-discriminatory reason
for the plaintiff’s non-selections—that the candidates that were selected were the most
qualified— is pretext for masking discrimination.
Furthermore, regarding the portion of the plaintiff’s analysis comparing his responses and
scores to the candidates that were selected, the Court reiterates that the plaintiff does not
challenge that he was more qualified than the individuals selected. See Pl.’s Opp’n at 21 n.5.
Also, the Court reemphasizes that the candidate selected for the 2014 position and one of the
candidates who advanced to the second round for the 2015 position were members of the
plaintiff’s protected class (individuals who spoke with a foreign accent), minimizing any
inference that the plaintiff was unlawfully discriminated against based on his national
origin. Murray, 406 F.3d at 715 (“[A selectee] within the same protected class cuts strongly
against any inference of discrimination.”). Nonetheless, the plaintiff contends that he should
have received scores either equal to or higher than the scores given to the candidates selected for
the positions. See Pl.’s Opp’n at 33–40. But, unless a “demonstrably discriminatory motive” is
apparent, which is not the case here, “[t]he Court ‘must respect the employer’s unfettered
discretion to choose among qualified candidates.” Adeyemi v. District of Columbia, No. 04-
1684 (CKK), 2007 WL 1020754, at *21 (D.D.C. Mar. 31, 2007) (first quoting Milton v.
Weinberger, 696 F.2d 94, 100 (D.C. Cir. 1982), then quoting Fischbach, 86 F.3d at 1183), aff’d,
525 F.3d 1222 (D.C. Cir. 2008). Accordingly, the Court does not find the plaintiff’s subjective
allegations that he was unfairly scored sufficient to create an inference that the Architect’s
28
qualifications-based explanation is pretextual.
c. The Plaintiff’s Contention that the Architect Selected or Advanced
Candidates in a Ploy to Disguise Discriminatory Animus
The plaintiff also alleges that the hiring of Tseng in 2014 was a ploy to conceal Clark’s
and Wiegmann’s discriminatory animus. See Pl.’s Opp’n at 41–44. In particular, the plaintiff
asserts that “a jury could conclude that Clark selected . . . Tseng knowing that she would
terminate him and then fill the position with someone who did not speak with an accent, which is
ultimately what occurred.” Id. at 42. As support for his position, the plaintiff argues that
Tseng’s interview indicated that he had a “passive management style,” id. (asserting this
conclusion because Tseng “gave a bad response to the question about managing contractors and
in-house staff” and because Tseng “was willing to ‘take crap’ from people”), and “lacked
expertise in Microsoft systems,” id. (making this assessment because Tseng did not provide an
example of a successful Microsoft deployment). Additionally, the plaintiff asserts that “Clark
began the process of terminating . . . Tseng shortly after hiring him.” Id.; see also id. at 42–43
(noting that Tseng started on October 20, 2014, that Clark’s first documentation of Tseng’s poor
performance was in early January 2015, and that Clark proposed to Human Resources Tseng’s
termination on July 30, 2015, which she allegedly “attempted to conceal”).
Regarding his non-selection in 2015, the plaintiff contends that
[a] jury could further conclude that, when it became clear that A.M. ([another
candidate] who was Hispanic and spoke with an accent) might have been the
selectee based on the results from the interview panel, Clark devised to use a second
round of interviews[] that . . . was used to eliminate A.M. because of his accent.
Id. at 40. Particularly, the plaintiff asserts that “Clark knew that . . . the highest scoring
candidate from the first round of interviews . . . would not ultimately accept the . . . position
because it was a demotion [for him],” and that “Clark [knowing that] A.M., the next highest
29
scoring candidate from the first round, would have been the selectee,” she announced that there
would be a second round of interviews. Id.
The Court finds these allegations by the plaintiff entirely speculative and hardly capable
of raising any inference of discrimination, let alone a discriminatory animus that motivated the
plaintiff’s non-selections. See Glass v. Lahood, 786 F. Supp. 2d 189, 219 (D.D.C. 2011)
(holding that inferences of discrimination the plaintiff sought to draw from her allegations were
“so vague and conclusory, and so far removed from the actual employment decision that [was]
being challenged, that a reasonable fact-finder could not draw even the weakest inference of
discrimination from [those] events.”). Concerning the selection of Tseng and his responses
during his interview, the plaintiff misses the mark, as the relevant inquiry is not whether a
reasonable jury can find pretext because the selected candidate failed to provide perfect answers
in his or her interview; rather, the relevant inquiry is whether “a reasonable employer would have
found the plaintiff to be significantly better qualified for the job.” Aka, 156 F.3d at 1294. And,
an “employer has discretion to choose among equally qualified candidates, provided the decision
is not based upon unlawful criteria.” Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 259
(1981). As the Architect notes, “each and every interview panelist (including . . . Clark) ranked
. . . Tseng as the most qualified candidate,” Def.’s Reply at 2; see Def.’s Mot., Ex. 24 (Collection
of panelists’ scores for Tseng), and, as the Court previously stated, this is a fact that the plaintiff
does not challenge, see supra Part III.B.1.
In addition, the plaintiff’s contentions that Clark began the process of terminating Tseng
shortly after he assumed the position and that Clark instituted a second round of interviews to
avoid selecting A.M. in 2015 do not raise an inference of discrimination regarding the plaintiff’s
two non-selections, which are the challenged adverse employment actions in this case. In any
30
event, the plaintiff misrepresents the record concerning the factual circumstances surrounding
these events. For instance, although the plaintiff alleges that “Clark attempted to conceal the fact
that she proposed Tseng’s [termination],” Pl.’s Opp’n at 43, the record shows that she never
actually filed a proposal before Tseng resigned, but only shows that she had intended to make
that recommendation, see Pl.’s Opp’n, Ex. 97 (Collection of emails and documents filed under
seal) at AOC002035 (informing Human Resources of her intent to terminate Tseng but
indicating that she was awaiting approval before starting the process); see Pl.’s Opp’n, Ex. 2
(Clark Dep.) at 212:8–9 (stating that she was preparing to, but never submitted any proposal).
Additionally, the plaintiff claims that the announcement of the second round of interviews came
after the conclusion of the first round; however, Clark testified that she explained to the first
round panelists that there would be a second round of interviews for the top three candidates
“[i]n the very beginning before the interview process started.” Pl.’s Opp’n, Ex. 2 (Clark Dep.) at
219:7–18. And, all of the other panelists for the first round could not remember or were unsure
of when Clark informed them that this interview process would consist of more than one round.
See Pl.’s Facts ¶ 173; see also Pl.’s Opp’n, Ex. 15 (Louis Dep.) at 122:7–123:10 (stating that he
does not “think [they] discussed [there being more than one round at the time the process was
explained] really,” and that he “believe[s] it was after all the candidates were interviewed”
because “some of the candidates were very close in scores”). But, even accepting the plaintiff’s
allegation as true that the announcement of a second round of interviews occurred after the
conclusion of the first round, the “narrowing [of] the pool of candidates through the use of a
preliminary round of interviews hardly suggests a discriminatory motive.” Glenn v. Bair, 643 F.
Supp. 2d 23, 41 (D.D.C. 2009).
Simply, all of these allegations rely too heavily on the plaintiff’s own subjective
31
interpretation of the record, and more importantly, are too speculative to raise a reasonable
inference of discriminatory animus on the basis of national origin against the plaintiff in regards
to his non-selections. Accordingly, the Court does not find that a reasonable jury could find that
these allegations raise an inference of discrimination sufficient to show that the Architect’s
qualifications-based explanation is pretextual.
d. The Plaintiff’s Allegations of Adverse Inferences That Should Be Construed
in His Favor
Despite the lack of evidence demonstrating a genuine inference of discrimination, the
plaintiff claims that he is entitled to adverse inferences “consistent with [his] evidence of
pretext,” Pl.’s Opp’n at 45, because “the [Architect] has destroyed or withheld (1) the scoring
matrix from the first selection . . . [,] (2) the [draft] vacancy announcement from the second
selection . . . [,] and (3) the justification memorandum from the second selection,” id. at 44.
According to the plaintiff, “the matrix and justification memorandum would have provided the
panel’s contemporaneous assessment of the candidates and justification for the selection, and . . .
the original vacancy announcement from the second selection would show whether Clark was
responsible for requiring candidates to supply their diplomas, transcripts, and or equivalency
certifications.” Id. at 44–45. In response, the Architect argues that the plaintiff “cannot show
that all of the documents he claims have been destroyed actually existed or that [it] in fact
destroyed them.” Def.’s Reply at 22.
Although, “[t]his Circuit has recognized negative evidentiary inferences arising from the
negligent spoliation of potentially relevant” documents, Paulk, 79 F. Supp. 3d at 90
(citing Gerlich v. U.S. Dep’t of Justice, 711 F.3d 161, 171 (D.C. Cir. 2013) (finding a duty to
preserve where future litigation was “reasonably foreseeable”); Talavera v. Shah, 638 F.3d 303,
311–12 (D.C. Cir. 2011) (allowing an adverse inference when negligent document destruction
32
violated an EEOC regulation)), the record weighs in favor of rejecting altogether the adverse
inferences the plaintiff seeks. 9 The Court reaches this conclusion because it does not find these
documents relevant to the plaintiff’s showing of pretext.
The plaintiff proposes the following inferences: (1) in regards to the 2014 scoring matrix
— “that the matrix did not exist and Clark fabricated her account that the discussion about the
candidates occurred after the scores had been recorded, or that the scoring matrix showed that
[he] was scored unfairly”; (2) in regards to the draft vacancy announcement — “Clark required
candidates to include their transcripts as a hurdle for [the plaintiff] to overcome”; and (3) in
regards to the justification memorandum — “there was some mention of avoiding candidates
who spoke with accents and/or that [he] had the qualifications required by the position.” Pl.’s
Opp’n at 45. As another member of this Court recognized, the “inference[s] of the magnitude
[the] plaintiff proposes would translate to [a] directed verdict in his favor, notwithstanding clear
evidence that” the Architect selected the most qualified candidates, Paulk, 79 F. Supp. 3d at 90, a
fact that the Court again notes the plaintiff does not dispute, see Pl.’s Opp’n at 21 n.5.
In any event, although the plaintiff alternatively speculates that a scoring matrix for the
first selection still exists or did exist, see Pl.’s Facts ¶ 125 (failing to provide support for the
existence of the scoring matrix), the plaintiff did “receive[] [the] individual scoring sheets
showing the scores awarded to each of the applicants,” Def.’s Reply at 22. In addition, even
though Clark testified that no changes were made to the draft that provided the basis for the final
vacancy announcement, see Pl.’s Opp’n, Ex. 2 (Clark Dep.) at 204:1–205:12 (noting that she did
9
“[T]he Circuit’s law on spoliation, for the ‘[d]estruction of notes or other documents purportedly relevant to a case
of discrimination has no effect . . . except when the circumstances of destruction provide[ ] a basis for attributing
bad faith to the agency involved.’” McIntyre v. Peters, 460 F. Supp. 2d 125, 138 (D.D.C. 2006) (alterations and
omission in original) (quoting Coleman v. Casey, No. 84-3071, 1986 WL 11744, at *5 (D.D.C. June 19, 1986)).
The Court notes that here the plaintiff “has not made . . . such a showing of bad faith regarding the [alleged]
destruction, and thus no adverse inference is mandated based on the spoliation doctrine.” Id.
33
not request the inclusion of language requiring candidates to provide proof of their transcripts
and that she did not make any changes to the draft vacancy announcement before it became
finalized), the requirement to provide proof of the applicants’ transcripts was applicable to each
of the applicants, not just the plaintiff, see Pl.’s Opp’n at 8 (acknowledging that this requirement
applied to other “foreign educated applicants”); see also Def.’s Mot., Ex. 17 (Cortez Dep.) at
31:8–33:1 (noting that its policy to ensure that all GS-14 applicants, such as the plaintiff, have a
Bachelor’s degree by requesting proof of a transcript or a diploma). Finally, regarding the
alleged justification memorandum for the 2015 selection, Clark testified that she had “notes [to]
explain why the selection was made [and] the factors that were considered” at a debriefing for
the internal candidates. Pl.’s Opp’n, Ex. 2 (Clark’s Dep.) 246:5–247:1. And, contrary to the
plaintiff’s speculation, it would be entirely unreasonable for those notes to indicate that the panel
should avoid candidates who spoke with accents, given that the record reflects that one of the top
three candidates selected for a second interview spoke with an accent. Also, concerning the
alternative inference that the plaintiff was qualified for the job, again the plaintiff misses the
mark, which is not whether he was qualified, but whether he was substantially more qualified
than the candidate selected. Therefore, the Court does not find that the plaintiff is entitled to any
adverse inferences stemming from these allegedly destroyed or withheld documents.
At bottom, upon review of the record, the Court does not find that the circumstantial
evidence offered by the plaintiff is sufficient to raise a reasonable inference that the plaintiff was
discriminated against based on his national origin when the Architect failed to select him for the
position in 2014 or in 2015. Accordingly, because a reasonable jury could not find that the
plaintiff has demonstrated through circumstantial evidence that the Architect’s
qualifications-based explanation for his non-selections is pretext for masking discrimination, the
34
Court must grant the Architect’s motion for summary judgment on the plaintiff’s discrimination
claim.
2. Retaliation
“Title VII’s anti-retaliation provision ‘forbids employer actions that discriminate against
an employee (or job applicant) because [he] has opposed a practice that Title VII forbids.”
Young v. Covington & Burling L.L.P., 846 F. Supp. 2d 141, 164 (D.D.C. 2012) (Walton, J.)
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006)). In the absence of
direct evidence of retaliation, “[c]laims of retaliation under Title VII are governed by the same
McDonnell-Douglas burden-shifting analysis applicable to discrimination claims.” Mamantov v.
McCarthy, 142 F. Supp. 3d 24, 32 (D.D.C. 2015) (Walton, J.). 10 As noted earlier, “[u]nder that
framework, a plaintiff must first establish a prima facie case of retaliation by showing (1) that he
engaged in a statutorily protected activity; (2) that he suffered a materially adverse action by his
employer; and (3) that a causal link connects the two.” Jones v. Bernanke, 557 F.3d 670, 677
(D.C. Cir. 2009) (emphasis added) (citing Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir.
10
To demonstrate the existence of direct evidence of retaliation, the plaintiff relies only on an e-mail sent by Dan
Cassil, the Deputy Chief Administrative Officer and supervisor of Wiegmann and Clark, to his superiors in October
2012, wherein he explained “why [the plaintiff] had been removed from his Help Desk Manager position.” Pl.’s
Opp’n at 19. However, the plaintiff’s reliance on this e-mail as direct evidence of retaliation is flawed for several
reasons. Primarily, because Cassil sent the e-mail approximately five months before the plaintiff engaged in
protected activity, see id. (stating that Cassil sent the aforementioned e-mail in October 2012); Compl. ¶ 27 (stating
that the plaintiff filed a complaint with the Office of Compliance in February 2013), and Cassil was not a decision-
maker in either of the two non-selections. Additionally, contrary to the plaintiff’s assertion, the content of Cassil’s
e-mail does not reflect retaliatory animus or that the plaintiff was removed from his Help Desk position because of
retaliation. See Pl.’s Opp’n at 19. Rather, Cassil explained that the basis for the plaintiff’s removal was because the
Department had no “need for a full-time federal helpdesk manager because that function [was] operated by [a]
contractor.” Id., Ex. 13 (e-mail sent from Cassil to Christine Merdon, among others, dated October 5, 2012
(“Cassil’s E-mail”)) at 1. And, Cassil noted that the plaintiff’s reassignment would “allow [the Department] to
better utilize [the plaintiff] to backfill th[e] critical IT Liaison vacancy, and eliminate [the plaintiff’s] work-required
contact with the co-worker” the plaintiff had a conflict with that resulted in the plaintiff “invok[ing] mediation.” Id.,
Ex. 13 (Cassil’s E-mail). Accordingly, the Court does not find that Cassil’s e-mail is direct evidence of retaliation
regarding the Architect’s non-selection of the plaintiff in 2014 and in 2015. See Hampton v. Vilsack, 760 F. Supp.
2d 38, 49 (D.D.C. 2011) (defining direct evidence as “expressions by the decision maker that are evidence
of discriminatory or retaliatory intent”); Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d 76, 86 (D.D.C.
2006) (Walton, J.) (“Direct evidence of discrimination is evidence that, if believed by the fact finder, proves the
particular fact in question without any need for [any] inference[s].”) (emphasis omitted).
35
2007). However, just like a discrimination claim, once an employer produces a legitimate,
non-retaliatory reason for the adverse action, “the burden-shifting framework disappears, and a
court reviewing summary judgment looks to whether a reasonable jury could infer intentional . . .
retaliation from all the evidence.” Carter v. George Wash. Univ., 387 F.3d 872, 878 (D.C. Cir.
2004).
The Court has already concluded that the Architect’s stated reason for the plaintiff’s
non-selections in 2014 and in 2015, (i.e., that the candidates selected were more qualified than
the plaintiff), qualifies as a legitimate, nondiscriminatory reason for the adverse actions
challenged by the plaintiff. Thus, similar to the earlier analysis of the plaintiff’s national original
discrimination claim, the Court must determine whether a reasonable jury could infer intentional
retaliation from the evidence. The plaintiff mainly argues that the “very close [temporal]
proximity between [his] protected activity,” the filing of his complaint with the OOC in 2013,
and the Architect’s two non-selections “creates a strong inference of retaliation” that suggests
that the Architect’s legitimate, non-retaliatory reason for the non-selections is pretextual. Pl.’s
Opp’n at 20. The Court disagrees.
“Temporal proximity can indeed support an inference of causation, but only where the
two events are very close in time.” Hamilton, 666 F.3d at 1357 (quoting Woodruff v. Peters, 482
F.3d 521, 529 (D.C. Cir. 2007)). Therefore, adverse “action[s] that transpire[] more than three or
four months after protected activity are less likely to create causal inferences.” Paulk, 79 F.
Supp. 3d at 91 (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001)); see
Roman v. Castro, 149 F. Supp. 3d 157, 173–74 (D.D.C. 2016) (finding that a reasonable jury
could discern retaliation based on the combination of temporal proximity and a “budding pattern
of antagonism” related to the plaintiff’s prior protected activity). Even where the plaintiff
36
sufficiently alleges close temporal proximity, “the fact that [the] employer[’s] adverse action
follows closely after an employee’s protected assertion of rights is not, by itself, always enough
to survive summary judgment.” Allen v. Johnson, 795 F.3d 34, 47 (D.C. Cir. 2015). And, once
an employer has offered a legitimate non-retaliatory reason for the challenged action, “positive
evidence beyond mere proximity is required to defeat the presumption that the proffered
explanations are genuine.” Woodruff, 482 F.3d at 530.
The Court finds that the plaintiff has not met his burden of producing “sufficient evidence
for a reasonable jury to infer” that retaliation was the actual motive for his non-selections by the
Architect. Jones, 557 F.3d at 679 (citation omitted). First, with respect to his non-selection in
2014, the plaintiff contends that this decision “was made on August 13, 2014—only two weeks
after” the Office of Compliance Board of Directors affirmed the hearing officer’s finding that the
Architect discriminated against him on the basis of his national origin by reassigning him from
the Help Desk manager position. Pl.’s Opp’n at 20 (“The Board’s decision, affirming [the
hearing officer’s] finding of discrimination and requiring the [Architect] to pay damages, was the
culmination of [the p]laintiff’s protected activity.”). However, although the Office of
Compliance Board of Directors’ decision occurred within a month of the plaintiff’s non-selection
in 2014, see id., Ex. 21 (BOD Decision); see also id. (noting that Office of Compliance Board of
Directors’ decision came two weeks before the plaintiff’s non-selection in 2014), it nonetheless
fails to raise an inference of retaliation for several reasons. The Court reaches this conclusion
primarily because the appeal to the Office of Compliance Board of Directors was undertaken by
the Architect and not the plaintiff, see Def.’s Mem. at 33 n.5 (arguing that its filing of an appeal
cannot constitute “protected activity activity under Title VII because it was not undertaken by
[the plaintiff]”); see also Pl.’s Mem. at 20 (failing to rebut this argument by the Architect or to
37
indicate how the plaintiff meaningfully participated in the appeal process such that his
participation could constitute protected activity); Clark Cty. Sch. Dist., 532 U.S. at 273 (holding
that “an action in which an employee takes no part” (i.e., an Equal Employment Opportunity
Commission’s issuance of a right-to-sue letter) cannot be considered protected activity by the
employee). But, even if this appeal could be considered as protected activity by the plaintiff, the
record indicates that the plaintiff interviewed and the panelists scored his responses on June 16,
2014, see Def.’s Mot., Ex. 25 (Collection of scores for the plaintiff), approximately two months
before the Office of Compliance Board of Directors issued its decision, see Pl.’s Opp’n at 20. 11
And the plaintiff has not alleged that his scores were unlawfully altered from when he was
interviewed to when his non-selection was announced. See generally Compl.; Pl.’s Opp’n.
Therefore, the timing of the appellate decision fails to raise an inference of retaliation.
Similarly, the plaintiff fares no better regarding his non-selection in 2015. As to this
adverse action, the plaintiff argues that, “[he] propounded discovery on September 3, 2015, and
the . . . vacancy [for the Branch Chief position] was opened three weeks later, on September 25,
2015,” and therefore, “[t]here is [a] very close proximity between protected activity and the
[Architect’s] action.” Pl.’s Opp’n at 20 (internal citation omitted). But, the opening of the
vacancy for the Branch Chief position in 2015 is by no means an adverse employment action.
See Holcomb, 433 F.3d at 902 (holding that adverse employment actions occur “when an
employee ‘experiences materially adverse consequences affecting the terms, conditions, or
privileges of employment or future employment opportunities such that a reasonable trier of fact
could find objectively tangible harm’”) (citation omitted). Rather, the adverse employment
11
The Court notes that the cases relied on by the plaintiff for the proposition that ongoing litigation involving an
employee’s participation constitutes protected activity all involved plaintiffs who were actively seeking to settle
their cases or seeking the relief that they had originally sought. See Pl.’s Opp’n at 20 (citing Singletary v. District of
Columbia, 351 F.3d 519, 524 (D.C. Cir. 2003); Youssef v. Holder, 62 F. Supp. 3d 96, 100 (D.D.C. 2014)).
38
action was the plaintiff’s non-selection for that position, see id. at 902 n.4 (“[A] plaintiff makes
out an adverse employment action once []he has shown that []he has been ‘aggrieved’ by the
action.”), which, as the plaintiff acknowledges, did not occur until March 4, 2016, see Suppl.
Compl. ¶ 20.
In sum, the plaintiff has failed to establish either through direct evidence or close
temporal proximity retaliation against him for engaging in protected activity. Therefore, the
Court must grant the Architect’s motion for summary judgment with respect to the plaintiff’s
claim of retaliation.
IV. CONCLUSION
For the foregoing reasons, because the plaintiff has failed to identify a sufficient reason
for oral argument or a new factual issue the Architect raised in its reply, the Court must deny the
plaintiff’s motion for oral argument or for leave to file a sur-reply. Additionally, the Court
concludes that a reasonable jury could not find that the Architect’s qualifications-based
explanation for the plaintiff’s two non-selections was pretext for discrimination or retaliation.
Therefore, the Court must grant summary judgment in favor of the Architect with respect to both
of the plaintiff’s Title VII claims.
SO ORDERED this 25th day of October, 2017. 12
REGGIE B. WALTON
United States District Judge
12
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.
39