Elliott v. Perez ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KENNETH ELLIOTT, :
:
Plaintiff, : Civil Action No.: 15-1737 (RC)
:
v. : Re Document No.: 18
:
R. ALEXANDER ACOSTA, 1 Secretary, :
United States Department of Labor, :
:
Defendant. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plaintiff Kenneth Elliott, an African American male and an employee of the U.S.
Department of Labor (“DOL”), alleges that DOL discriminated against him on the basis of race
and/or sex when it failed to select him for three separate promotions. DOL moves for summary
judgment, offering qualification-based explanations for each hiring decision. While DOL is
entitled to summary judgment with respect to two of the hiring decisions, the Court finds that
DOL improperly destroyed interview notes that corroborate its rationale for the one remaining
decision, that Plaintiff is entitled to an inference that the notes would have contained information
favorable to his claim, and that his claim regarding that position survives DOL’s motion.
Accordingly, the Court grants in part and denies in part DOL’s motion.
1
Pursuant to Federal Rule of Civil Procedure 25(d), R. Alexander Acosta is substituted
as Secretary for his predecessor Thomas Perez.
II. BACKGROUND
Plaintiff Kenneth Elliott has been a Labor Economist in the DOL’s Bureau of Labor
Statistics (“BLS”), Office of Compensation and Working Conditions since March 1992. EEO
Affidavit of Kenneth Elliott (“Elliott Aff.”) at 2, Ex. E, ECF No. 18-2. He is currently employed
at the GS-13 grade level. Elliott Aff. at 2.
In March 2014, the BLS, Office of Compensation and Working Conditions, Office of
Compensation Levels and Trends (“OCLT”) posted Vacancy Announcement No. MS-14-BLS-
CW-018, which advertised two GS-14 positions: the position of Branch Chief for Survey
Information and Publications (“Branch Chief for SI&P”) in the Division of Compensation Data
Analysis and Planning and the position of Branch Chief for Data Capture and Review (“Branch
Chief for DCR”) in the Division of Compensation Data Estimation. Ex. A, ECF No. 18-2. The
BLS Division of Human Resources and Organization Management prepared a single certificate
of eligible candidates covering both vacancies. Affidavit of Phillip Doyle, (“Doyle Aff.”) at 3,
Ex. B, ECF No. 18-2. Mr. Elliott applied for and was deemed eligible for both positions. See
Elliott Aff. at 3.
Phillip Doyle—a white man who was then Assistant Commissioner for OCLT—was
involved in selecting candidates for the Branch Chief for SI&P position while Frances Harris—
an African American woman who is Division Chief of Compensation and Data Estimation in
OCLT—was involved in selecting candidates for the Branch Chief for DCR position. Doyle Aff.
at 1–2; Affidavit of Frances Harris (“Harris Aff.”), at 2–3, Ex. C, ECF No. 18-2. Mr. Doyle and
Ms. Harris each independently reviewed the list of eligible applicants to identify candidates to
jointly interview. Doyle Aff. at 4. Mr. Doyle and Ms. Harris also jointly prepared interview
questions to ask all candidates. Doyle Aff. at 4; Affidavit of Frances Harris (“Harris Aff.”) at 3,
Ex. C, ECF No. 18-2. Likewise, Mr. Doyle and Ms. Harris conducted interviews together and
discussed reactions to the candidates after the interviews. Doyle Aff. at 3; Harris Aff. at 2, 8.
Thirteen or fourteen individuals interviewed with Ms. Harris and Mr. Doyle. Doyle Aff.
at 11 (listing fourteen interviewees); Harris Aff. at 10 (listing thirteen interviewees). Of the
candidates, Mr. Doyle selected Jesus Ranon-Hernandez, a Hispanic male, for the position for
Branch Chief for SI&P. Doyle Aff. at 12; Pl.’s Statement of Material Facts in Dispute (“Pl.’s
SMF”) ¶ 22. According to Mr. Doyle, Mr. Ranon-Hernandez was selected based on his superior
interview. In his interview, Mr. Ranon-Hernandez “demonstrated his ability to juggle multiple
projects by citing examples from his current position and during a previous assignment [in
OCLT],” “provided details of the types of projects he coordinated and the challenges they
presented,” and “used a role-playing strategy to demonstrate how he would coach and mentor an
employee.” Doyle Aff. at 12. Mr. Ranon-Hernandez also explained the challenges he faced as a
new employee in another BLS office and explained how he worked with BLS staff to resolve
problems, gain the confidence of others, and encourage the development of junior staff. Doyle
Aff. at 12. In addition, Mr. Ranon-Hernandez described what Mr. Doyle regarded as a “low-key
approach to dealing with conflict that included non-confrontational fact-finding and an emphasis
on problem resolution.” Doyle Aff. at 12.
Though Mr. Doyle observed that “to varying degrees” Mr. Elliott met most of the
requirements for the Branch Chief of SI&P position, Mr. Doyle described Mr. Elliott’s interview
in less than glowing terms and inferior to that of Mr. Ranon-Hernandez. According to Mr.
Doyle, Mr. Elliott demonstrated only “some ability to juggle conflicting assignments” and only
“for limited periods.” Doyle Aff. at 10. Likewise, according to Mr. Doyle, Mr. Elliott failed to
“demonstrate how he would coach and mentor an employee.” Doyle Aff. at 10. In Mr. Doyle’s
opinion, Mr. Elliott’s response to a hypothetical conflict situation “provided little detail.” Doyle
Aff. at 10. In addition, Mr. Doyle was surprised to hear Mr. Elliott mention during the interview
his “past performance [and] past conduct issues,” such as his attendance issues and his non-
completion of a BLS leadership development program. Doyle Dep., Ex. 7 at 59:15-60:8.
After Mr. Doyle had “made [his] selection decision to choose Jesus Ranon-Hernandez,”
he reports that he had a discussion with Mr. William Wiatrowski, Associate Commissioner,
Senior Executive Service at BLS and Mr. Doyle’s immediate superior. Doyle Aff. at 8; Affidavit
of William J. Wiatrowski (“Wiatrowski Aff.”) at 2, Ex. 8, ECF No. 22-10. Mr. Doyle states that
he “informed Mr. Wiatrowski about the reasons that [he] had chosen Mr. Ranon-Hernandez,” but
he “did not discuss with Mr. Wiatrowski the reasons that [he] did not choose the other candidates
who were interviewed.” Doyle Aff. at 8. According to Mr. Doyle, “Mr. Wiatrowski did not
have any objections to [the] selection decision and he concurred with it.” Doyle Aff. at 8.
Of the candidates interviewed for the position of Branch Chief for DCR, Ms. Harris
selected Neil McIntyre, a white man. Harris Aff. at 10. According to Ms. Harris, Mr. McIntyre
was selected because, among other things, he was “a seasoned team leader engaged in day-to-day
production for nearly 15 years.” Harris Aff. at 12. Ms. Harris also reportedly valued that Mr.
McIntyre had “both broad and specific, current and historical knowledge of review processes,
systems, and tools,” and that “he has leveraged this knowledge.” Harris Aff. at 12. In addition,
Mr. McIntyre “focuse[d] on building a team, leverage[d] the unique strengths of each team
member, and s[ought] opportunities to coach, mentor, direct, and empower[] the team as a whole
to higher performance.” Harris Aff. at 12. Ms. Harris observed that Mr. McIntyre had “long
standing experience leading and developing larger teams consisting of eight to ten staff
employees.” Harris Aff. at 12. By contrast, Ms. Harris reportedly believed that Mr. Elliott had
“dated” knowledge of certain subjects. Harris Aff. at 12. She also found that while “Mr.
McIntrye focused attention on building, guiding, bringing together, collaborating, and leading
people to success,” “Mr. Elliott mainly focused on how he individually accomplished assigned
tasks, but did not present thorough examples which demonstrated his ability to collaborate with
and develop the skills of other staff members.” Harris Aff. at 12–13. Furthermore, in his
interview, Mr. Elliott “did not note extensive or recent familiarity with all the relevant
production processes” and “did not provide answers that reflected the desired experience with
team development” or “highlight achievements that reflected his ability to manage others to
achieve results.” Harris Aff. at 9.
Like Mr. Doyle, Ms. Harris consulted with others before extending Mr. McIntyre an offer
of employment. Specifically, Ms. Harris shared her top two candidates with Mr. Doyle, who was
Ms. Harris’s immediate supervisor. Harris Aff. at 7. However, according to Ms. Harris, “Mr.
Doyle had no input on [her] consideration of [Mr. Elliott] or any other candidate.” Harris Aff. at
8. Ms. Harris also presented Mr. Wiatrowski—her second-line supervisor—with a proposed
justification document, which clarified the reasons that she had selected Mr. McIntyre.
Wiatrowski Dep. 51:13-52:11, Ex. 4, ECF No. 22-6. By email, Ms. Harris requested “any
comments or suggested changes” on the justification document. Wiatrowski Dep. 51:17-52:1;
see also Wiatrowski Dep. 59:2-14 (acknowledging that, under DOL’s selection process Ms.
Harris officially “ma[d]e a recommendation to [Mr.] Doyle, [Mr.] Doyle ha[d] a discussion with
[Mr. Wiatrowki], [then] it [was] signed off by the commissioner”). Mr. Elliott learned of his
non-selection for both positions in May 2014. See Elliott Aff. at 7.
That same month, the BLS posted Vacancy Announcement No. MS-14-BLS-CW-062,
which advertised the position of Branch Chief for Procedures and Program Development
(“Branch Chief for PPD”) in the OCLT’s Division of Compensation Data Analysis and Planning.
Ex. K, ECF No. 18-3. Mr. Elliott applied for and was deemed eligible for the position. Elliott
Aff. at 10–11. Bryandt Dickerson, an African American woman and a Supervisory Economist at
the GS-15 level, received the certificate of eligible candidates and conducted all nine interviews
for the position. Elliott Aff. at 10; Affidavit of Bryandt Dickerson (“Dickerson Aff.”) at 1–2, 12,
17, Ex. M, ECF No. 18-3. Of the candidates, Ms. Dickerson selected Renee Marshall and did
not select Mr. Elliott. Dickerson Aff. at 14. Ms. Dickerson offered that she did not select Mr.
Elliott because he lacked recent economic survey experience, which she gleaned because during
his interview Mr. Elliott seemed unable to provide her with examples of his experience working
with recent survey data. Dickerson Aff. at 14; Dickerson Dep., 61:18-63:4, 65:21-66:5, Ex. N,
ECF No. 18-4. According to Ms. Dickerson, “[a]fter [she] made [her] selection decision,” she
shared her reasons for selecting Ms. Marshall with Mr. Doyle and Mr. Wiatrowski, two
supervisors in her chain of command. Dickerson Aff. at 14. However, her “discussions with Mr.
Doyle and Mr. Wiatrowski did not positively or adversely impact [Mr. Elliott’s] non-selection
for the position.” Dickerson Aff. at 14.
Mr. Elliott initiated the EEO complaint process on May 9, 2014. Compl. ¶ 7; Def.’s
Answer to Pl.’s Am. Compl. (“Def’s Answer”) ¶ 7. The next month, he filed a formal complaint
of discrimination. Compl. ¶ 7; Def.’s Answer ¶ 7. The Final Agency Decision in this matter was
issued in July 2015. Compl ¶ 7; Def.’s Answer ¶ 7. Mr. Elliott filed the present action in
October 2015. Currently before the Court is DOL’s motion for summary judgment.
III. LEGAL STANDARDS
A. Summary Judgment
A court may grant summary judgment when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). A “material” fact is one capable of affecting the substantive outcome of the
litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is
“genuine” if there is enough evidence for a reasonable jury to return a verdict for the non-
movant. See Scott v. Harris, 550 U.S. 372, 380 (2007). The inquiry under Rule 56 is essentially
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at
251–52.
The principal purpose of summary judgment is to streamline litigation by disposing of
factually unsupported claims or defenses and determining whether there is a genuine need for
trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial
burden of identifying portions of the record that demonstrate the absence of any genuine issue of
material fact. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the party
opposing summary judgment must point to specific facts in the record that reveal a genuine issue
that is suitable for trial. See Celotex, 477 U.S. at 324. In doing so, the nonmovant may not rely
on “statements that are impermissible hearsay or that are not based on personal knowledge.”
Shuler v. District of Columbia, 744 F. Supp. 2d 320, 327 (D.D.C. 2010). In considering a motion
for summary judgment, a court must “eschew making credibility determinations or weighing the
evidence,” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all underlying facts and
inferences must be analyzed in the light most favorable to the nonmovant, see Anderson, 477
U.S. at 255. Nevertheless, conclusory assertions offered without any evidentiary support do not
establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999).
B. Title VII Framework
Title VII of the Civil Rights Act of 1964 promises that “[a]ll personnel actions affecting
employees . . . shall be made free from any discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e–16(a). To prevail on a claim brought under Title VII, a
plaintiff must show that he suffered an adverse employment action because of his race, color,
religion, sex, or national origin. Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 2008).
Direct evidence of discrimination generally entitles the plaintiff to a jury trial. See Vatel v. All.
of Auto Mfrs., 627 F.3d 1245, 1247 (D.C. Cir. 2011). In the absence of direct evidence of
discrimination, courts typically assess a claim under the burden-shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Under that framework, a
plaintiff is required to first make out a prima facie case of discrimination by showing that he “(1)
is a member of a protected class; (2) suffered an adverse employment action; and that (3) the
unfavorable action gives rise to an inference of discrimination.” Nurriddin v. Bolden, 818 F.3d
751, 758 n.6 (D.C. Cir. 2016). Once the plaintiff establishes a prima facie case of
discrimination, the burden shifts to the employer to supply “some legitimate, nondiscriminatory
reason for the [action in question].” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)
(alteration in original). After the employer makes such a showing, the plaintiff must show that
“the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.” George v. Leavitt, 407 F.3d 405, 411 (D.C. Cir. 2005) (quoting Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
An employee may not show pretext by “simply criticizing the employer’s
decisionmaking process.” Hairston v. Vance–Cooks, 773 F.3d 266, 272 (D.C. Cir. 2014). “Even
if a plaintiff ‘was victimized by poor selection procedures,’ [courts] may not ‘second-guess an
employer’s personnel decision absent demonstrably discriminatory motive.’” Id. (quoting
Fischbach v. D.C. Dep’t of Corrs., 86 F.3d 1180, 1183 (D.C. Cir. 1996)). Rather, “[t]he plaintiff
must identify evidence from which a reasonable jury could find that the employer’s stated
reasons were ‘phony.’” Moeller v. LaFleur, 246 F. Supp. 3d 130, 140 (D.D.C. 2017) (quoting
Fischbach, 86 F.3d at 1183). In addition, “[t]he evidence of record must be such that a
reasonable jury could not only disbelieve the employer’s reasons, but conclude that the real
reason the employer took a challenged action was a prohibited one.” Walker v. Johnson, 798
F.3d 1085, 1093 (D.C. Cir. 2015); see also Mount v. Johnson, 174 F. Supp. 3d 553, 561 (D.D.C.
2016) (“[P]roviding sufficient evidence for a jury to reject the defendant’s reason is not sufficient
‘if it is nevertheless impossible for a rational factfinder to conclude the action was
discriminatory.’” (quoting Rochon v. Lynch, 139 F. Supp. 3d 394, 404 (D.D.C. 2015))).
The D.C. Circuit has clarified that district courts are to abbreviate the customary inquiry
under certain circumstances: “In a Title VII disparate-treatment suit 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 v.
Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, “the district court must
resolve one central question: Has the employee produced sufficient evidence for a 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 race, color,
religion, sex, or national origin?” Id. To answer this question, district courts consider “all the
evidence, including ‘(1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to
attack the employer’s proffered explanation for its action; and (3) any further evidence of
discrimination that may be available to the plaintiff (such as independent evidence of
discriminatory statements or attitudes on the part of the employer).’” Carter v. George
Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (quoting Waterhouse v. District of
Columbia, 298 F.3d 989, 992–93 (D.C. Cir. 2002)).
IV. ANALYSIS
DOL offers legitimate non-discriminatory reasons for the three hiring decisions under
consideration in this case. Namely, DOL asserts that stronger candidates than Mr. Elliott were
selected for each Branch Chief position. Accordingly, the Court must focus its attention on
whether Mr. Elliott has produced sufficient evidence for a reasonable jury to find that DOL’s
asserted non-discriminatory reasons were not the actual reasons for its hiring decisions and that,
instead, DOL intentionally discriminated against Mr. Elliott on the basis of race and/or sex.
Plaintiff presents three primary arguments in an attempt to fend off summary judgment
for DOL. First, Plaintiff argues that triable issues of material fact persist concerning whether Mr.
Wiatrowski truly acted as the selecting official who decided not to hire him for each of the
positions. Second, Plaintiff asserts that all three selection processes were characterized by
“subjectivity, bias, inconsistency, and the subjective application of subjective criteria,” and that,
on that basis, a reasonable jury could conclude that DOL’s stated reasons for its hiring decisions
were pretext. Finally, he contends that DOL’s failure to retain certain documents related to two
of the hiring decisions warrants an adverse inference against DOL and justifies sending this case
to a jury. As explained below, Mr. Elliott has raised triable issues regarding his nonselection for
the Branch Chief for PPD position, but not with respect to his nonselections for the Branch Chief
for SI&P and Branch Chief for DCR positions. Accordingly, the Court will grant in part and
deny in part DOL’s motion for summary judgment.
A. Branch Chief for DCR
Mr. Elliott contends that two genuine issues of material fact preclude summary judgment
for DOL on his claim regarding his nonselection for Branch Chief for DCR: (1) whether Mr.
Wiatrowski—not Ms. Harris—acted as a selecting official for the position and (2) whether DOL
improperly used subjective criteria to distinguish among candidates for the position. The Court
concludes that Mr. Elliott has not raised genuine, triable issues. It therefore grants summary
judgment for DOL on this claim.
1. Mr. Elliott Has Identified No Genuine Issue of Material Fact Regarding Whether Mr.
Wiatrowski Acted as a Selecting Official
With respect to Mr. Elliott’s nonselection for the position of Branch Chief for DCR, he
first contends that a genuine issue of material fact exists regarding whether Mr. Wiatrowski (a
white man), not Ms. Harris (an African American woman), was the real selecting official for the
position. Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Pl’s Opp’n to MSJ”) at 9–13, ECF No. 22-1.
According to Mr. Elliott, Ms. Harris made a mere recommendation to Mr. Doyle and then to Mr.
Wiatrowski, who had final hiring authority and DOL has masked Mr. Wiatrowski’s role to
“conceal an institutionally subjective and biased decision-making process.” Pl.’s Opp’n to MSJ
at 3. Mr. Elliott apparently raises this purported issue in response to DOL’s argument that the
fact that Ms. Harris is an African American, like Mr. Elliott, might undermine his claim of race
discrimination. See Def.’s MSJ at 11 (citing Gonda v. Donahoe, 79 F. Supp. 3d 284 (D.D.C.
2015)). In addition, Mr. Elliott seems to argue that Mr. Wiatrowski was the source of
discrimination and that his participation in the selection process raises the specter of
discrimination. The Court disagrees.
First, Mr. Elliott has identified no genuine dispute regarding Ms. Harris’s role in the
selection process. DOL regulations define “selecting official” as “a management official with
the authority to recruit for and select candidates for vacant positions in his/her organization.”
DOL Personnel Regulations Chap. 335; Declaration of Nicole Peters (“Peters Decl.”) ¶ 3. Even
under Mr. Elliott’s characterization of events, Ms. Harris—who helped develop the criteria listed
in the vacancy announcement, authored interview questions, interviewed candidates, and
selected a preferred candidate—is a selecting official under this definition.
Second, Mr. Elliott has identified no genuine dispute regarding Mr. Wiatrowski’s role in
the hiring process. No testimony or other evidence suggests that Mr. Wiatrowski recruited
anyone to apply for the position or identified candidates for the vacancy. At most, the record
shows that Ms. Harris consulted with Mr. Wiatrowski and Mr. Doyle—who acted as concurring
officials, in DOL parlance—after Ms. Harris had already identified her preferred candidates. See
Peters Decl. ¶¶ 6–10 (explaining the role of concurring officials in the DOL hiring process);
Harris Aff. at 3 (noting that Mr. Doyle was “the approving official for [her] selection” for Branch
Chief for DCF); Wiatrowski Dep. 51:13-52:21 (acknowledging that Ms. Harris asked Mr.
Wiatrowski for feedback and to sign off on a document justifying the reasons that she had
selected Mr. McIntyre for the position of Branch Chief for DCR). Furthermore, DOL does not
dispute that Ms. Harris discussed her selection choice with superiors in her chain of command,
namely Mr. Doyle and Mr. Wiatrowski. See Def.’s Reply at 4, ECF No. 24. In sum, nothing on
record supports Mr. Elliott’s insinuation that Mr. Wiatrowski’s preferences steered the selection
process for Branch Chief for DCR in any meaningful way. Mr. Elliott’s “‘conclusory
allegations’ and ‘unsubstantiated speculation,’ . . . ‘do not create genuine issues of material
fact.’” Mokhtar v. Kerry, 83 F. Supp. 3d 49, 61 (D.D.C. 2015) (quoting Bonieskie v. Mukasey,
540 F. Supp. 2d 190, 200 n.12 (D.D.C. 2008)).
Third, to survive a motion for summary judgment, a “plaintiff must identify evidence
from which a reasonable jury could find that the employer’s stated reasons were ‘phony.’”
Moeller, 246 F. Supp. 3d at 140. Even assuming that Mr. Wiatrowski had served as the “actual”
selecting official because Ms. Harris’s decision constituted only a recommendation, Mr. Elliott
fails to explain exactly why this might lead a reasonable jury to infer that DOL’s explanations for
its hiring decision was pretext. The D.C. Circuit has explained that “[p]roviding more detailed
information [about a personnel action] once litigation begins does not create a genuine issue of
material fact.” Hairston, 773 F.3d at 273. Here, further information about Mr. Wiatrowski’s
role in the hiring process in no way undermines Ms. Harris’s explanation for her hiring decision,
particularly because, as the Court just explained, there is no evidence that Mr. Wiatrowski did
more than review and concur with Ms. Harris’s selection. It is, rather, further information about
the hiring process.
Furthermore, Mr. Elliott has not shown that any dispute about Mr. Wiatrowski’s role in
the selection process is material. Although not artfully presented, Mr. Elliott seems to argue that
Mr. Wiatrowski was the source of discrimination and that, if Mr. Wiatrowski participated in the
hiring process, a jury could infer that the selection process was tainted with discrimination and,
accordingly, that DOL’s stated reasons for declining to hire Mr. Elliott were pretext. See Pl.’s
Opp’n at 5. Mr. Elliott claims that a jury might infer that Mr. Wiatrowski was the source of
discrimination from comments Mr. Wiatrowski purportedly made to Mr. Elliott years ago about
how Mr. Elliott “should be happy” that he has had “a good career” at DOL and has “reached the
GS-13 level.” 2 See Pl.’s Opp’n at 5; Elliott Aff. at 17. In addition, Mr. Elliott claims that on
another occasion Mr. Wiatrowski questioned whether Mr. Elliott “deserve[d]” an “outstanding
rating” that an immediate supervisor had given him. 3 Pl.’s Opp’n at 5; Elliott Aff. at 17.
This argument fails for at least two reasons. First, “[t]hese statements . . . are neither
explicitly racial nor infused with racial undertones based on common usage” and courts in this
jurisdiction have been reluctant to “infer discriminatory intent if the words uttered are plainly
lacking in racial animus.” Hairston, 773 F.3d at 256. And, second, the D.C. Circuit has made
clear that “isolated race-based remark[s] unrelated to the relevant employment decision c[an]
not, without more, permit a jury to infer discrimination.” Morris v. McCarthy, 825 F.3d 658,
669 (D.C. Cir. 2016). While such comments are not categorically immaterial, courts may
conclude that, when viewed in the context of other evidence of record, the remarks would not
permit a jury to infer discrimination. See id. at 670–72 (describing cases where stray remarks
were insufficient to create a jury question and distinguishing cases where racially charged
statements were “pervasive[], sever[e],” or where the speaker played a significant role in the
adverse action). Here, even viewing the evidence in the light most favorable to Mr. Elliott—as
2
According to Mr. Elliott, in approximately 2007 or 2008, Mr. Wiatrowksi made these
comments after Mr. Elliott asked about efforts to further his career at BLS. Elliott Aff. at 17; see
Elliott Dep. 28:13-29:8. Mr. Elliott contends that Mr. Wiatrowksi had advised him to leave BLS,
explaining that Mr. Elliott would not be promoted to the GS-14 level. Elliott Aff. at 17. Mr.
Elliott also claims that two of his colleagues reported that Mr. Wiatrowski told them that Mr.
Elliott would never be promoted to GS-14, but the record does not show when Mr. Elliott’s
colleagues reported this information. Id.
3
At the time that Mr. Wiatrowksi made these alleged comments, Ms. Harris served as
Mr. Elliott’s first-line supervisor. Elliott Aff. at 17. Ms. Harris had rated Mr. Elliott
“Outstanding,” and Mr. Wiatrowski—Ms. Harris’s first-line supervisor and Mr. Elliott’s second-
line supervisor—had to sign off on that rating. Id. Mr. Wiatrowski purportedly called Mr.
Elliott into his office and told him, “I don’t know if you deserve this [rating], but I am going to
go ahead and sign it.” Id. The record is not clear on when Mr. Wiatrowski allegedly made this
comment.
this Court must—no reasonable jury could doubt DOL’s stated reasons for its hiring decision
based on these statements, which were unrelated to the hiring process at issue and were, in some
cases, distant in time from it. In sum, the Court concludes that Mr. Elliott has failed to identify
any genuine issue of material fact regarding Mr. Wiatrowski’s role in hiring for the Branch Chief
for DCR position.
2. Mr. Elliott Has Identified No Genuine Issue of Material Fact Regarding Subjectivity in
the Hiring Process
Next, Mr. Elliott argues that the hiring process for the position of Branch Chief for DCR
was “characterized by subjectivity, bias, inconsistency, and the selective application of
subjective criteria.” Pl.’s Opp’n to MSJ at 1–2, 13–19. Specifically, Mr. Elliott challenges Ms.
Harris’s reliance on criteria that he contends were not explicitly mentioned in—or that seemed to
him to be inconsistent with—the standards mentioned in the written vacancy announcements.
Pl.’s Opp’n to MSJ at 13–19. For example, he takes issue with the fact that Ms. Harris identified
a candidate’s ability to lead and to develop a successful team as “the most important criteria” for
the Branch Chief for DCR position. Pl.’s Opp’n to MSJ at 14–15. He likewise questions Ms.
Harris’s choice to distinguish between “recent” and “dated” experience working with microdata.
Pl.’s Opp’n to MSJ at 15. The Court concludes that Mr. Elliott has failed to identify any
evidence of subjectivity or arbitrariness in the selection processes that might be probative of
pretext.
The D.C. Circuit has acknowledged that an employer’s strong reliance on subjective
criteria may, at times, mask discrimination. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1298
(D.C. Cir. 1998). But the Circuit has also made clear that “employers may of course take
subjective considerations into account in their employment decisions.” Id.; see also Harris v.
Grp. Health Ass’n, Inc., 662 F.2d 869, 873 (D.C. Cir. 1981) (“While it is true that subjective
criteria lend themselves to racially discriminatory abuse more readily than do objective criteria,
there nonetheless are situations where employment decisions can, must, and should be made on
the basis of subjective criteria.”); Kwon v. Billington, 370 F. Supp. 2d 177, 186 (D.D.C. 2005)
(“Title VII’s concern that over reliance on subjective criteria might mask discrimination is not
meant to render performance in an interview as an irrelevant consideration in personnel
decisions.”). Indeed, the Circuit’s precedents clarify that there are limited circumstances where
the subjectivity of hiring considerations might lead to an inference of pretext.
In Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir. 2012), the Circuit found that an
employee’s claims should have survived summary judgment where, among other things, the
employer relied entirely on subjective considerations, such as “communications skills,” to
evaluate interview performance; the relevant skills were not emphasized in the job description;
the selecting official failed to point to concrete examples of poor answers that might have
grounded their subjective assessment in more objective facts; and there was evidence on record
from which a reasonable jury could conclude that the plaintiff was significantly more qualified
than the selected candidate. Id. at 1351–57. Similarly, in Aka, the Circuit determined that an
employer could not rely solely on a plaintiff’s purported lack of “enthusiasm” to explain its
hiring decision where a jury could find that the plaintiff was markedly better qualified for the job
and a jury could disbelieve the employer’s explanation for its hiring decision. 156 F.3d at 1298–
99. Hamilton and Aka provide that “[i]t is in these close cases, where the plaintiff’s
qualifications were significantly better than the selected candidate’s, that the subjectivity of
considerations lends itself to the inference of pretext.” St. John v. Napolitano, 20 F. Supp. 3d 74,
97 (D.D.C. 2013); see also Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007).
This case is unlike Hamilton and Aka. Most importantly, Mr. Elliott certainly has not
demonstrated that he was significantly more qualified than Mr. McIntyre, the selectee for Branch
Chief for DCR. Mr. Elliott apparently surmises that he was better qualified than Mr. McIntyre
because Mr. McIntyre had not worked his entire career in the DOL national office as Mr. Elliott
had. However, in Stewart v. Ashcroft, 352 F.3d 422 (D.C. Cir. 2003), the D.C. Circuit rejected
this very same argument as a sufficient means of showing that a plaintiff was better qualified
than a selectee. Id. at 429 (“[Plaintiff] relies heavily on the fact that he was already an SES
employee, whereas [the selectee] was not. While this is true, it says little about the level of
relative qualifications between the two men to serve as Chief.”). And, in any event, courts are
not to “second-guess how an employer weighs particular factors in the hiring decision.”
Jackson, 496 F.3d at 709. Thus, this Court cannot and will not tell DOL what type of experience
it should have valued in conducting its hiring process. “[I]n cases where courts rely on the
subjectivity of the criteria at issue, the deciding factor on summary judgment is often that ‘a jury
could reasonably find that the plaintiff was otherwise significantly better qualified than the
successful applicant.’” St. John, 20 F. Supp. 3d at 97 (quoting Aka, 156 F.3d at 1298)). This is
because where the differences between candidates are minor, “a reasonable juror would usually
assume that the employer is more capable of assessing the significance of small differences in
the qualifications of the candidates, or that the employer simply made a judgment call.”
Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006). Because Mr. Elliott has failed to show
that he was more qualified than the selectee for this position, his claim cannot survive DOL’s
motion.
Furthermore, it is of limited significance that the vacancy announcement for Branch
Chief for DCR did not mention each and every factor that the selecting official considered in
evaluating candidates. The record shows that the subjective criteria on which the hiring officials
relied were neither unknown nor developed post-hoc. Indeed, the announcement plainly outlined
that all qualified applicants would be evaluated on, among other things, Team Building,
Accountability, Decisiveness, Decision Making/Problem Solving, and Planning and Evaluation.
Ex. A at 4, ECF No. 18-2; Ex. K at 4, ECF No. 18-3. And even if DOL strayed from the specific
criteria written in black and white, it committed no misstep. The D.C. Circuit has explained that
“job descriptions are often phrased in general terms, and employers then make the ultimate
hiring decision in light of more specific factors—such as their strategic priorities and goals at the
time, the strengths and weaknesses of the applicant pool, and the overall skills of and gaps in
their existing workforce.” Jackson, 496 F.3d at 708. In fact, the Circuit has noted that “an
employer may select ‘a candidate who on paper is less qualified for other reasons, such as
subjective reactions that emerge in the interview.’” Id. at 709 (quoting Aka, 156 F.3d at 1294 &
n.10). In sum, this is not a situation where the fact that the defendant relied on subjective
considerations raises an inference of discrimination. 4
***
Mr. Elliott has not identified any issue of material fact concerning Mr. Wiatrowski’s role
in the selection process for Branch Chief for DCR. The record reveals that Mr. Wiatrowski
played only a minimal role in the selection process, while Ms. Harris’s preferences drove the
4
In addition, unlike in Hamilton and Aka, the hiring official in this case provided
concrete examples to explain her subjective assessments. For example, Ms. Harris explained that
while “Mr. McIntrye focused attention on building, guiding, bringing together, collaborating, and
leading people to success,” “Mr. Elliott mainly focused on how he individually accomplished
assigned tasks mostly but did not present thorough examples which demonstrated his ability to
collaborate with and develop the skills of other staff members.” Harris Aff. at 12–13. And
relatedly, no elaborate explanation is required to explain Ms. Harris’s commonsensical
preference for recent over dated experience.
process. And, in any event, Mr. Elliott has not shown why Mr. Wiatrowski’s participation in the
hiring process might raise an inference of discrimination. Likewise, Mr. Elliott has failed to
demonstrate that DOL’s reliance on subjective criteria to distinguish among job applicants
differed from the sort of reliance that the D.C. Circuit has sanctioned in the past. Accordingly,
the Court concludes that no reasonable juror could find that DOL discriminated against Mr.
Elliott when it did not select him as Branch Chief for DCR because neither issue, individually or
jointly, suffices to overcome DOL’s motion for summary judgment.
B. Branch Chief for SI&P
With respect to his nonselection for Branch Chief for SI&P, Mr. Elliott argues that (1)
Mr. Wiatrowksi was the true selecting official for the position and that his participation in the
hiring process raises the specter of discrimination; (2) DOL relied on improper subjective criteria
to distinguish candidates for the position; and (3) Mr. Doyle improperly destroyed his interview
notes and other materials, which entitles Mr. Elliott to an inference that those materials would
have been favorable to his claim. The Court rejects the first two arguments because Mr. Elliott
has not identified any triable issue concerning Mr. Wiatrowski’s participation in the hiring
process for Branch Chief for SI&P and Mr. Elliott has not shown any use of subjective criteria
on which a reasonable jury might infer discrimination. And while the Court concludes that Mr.
Elliott has demonstrated that some—but not all—of the materials that Mr. Doyle generated
during the selection process for Branch Chief for SI&P were improperly destroyed, it finds that,
even with a favorable inference regarding those materials, Mr. Elliott’s claim still cannot survive
summary judgment. Accordingly, the Court grants DOL’s motion with regard to Mr. Elliott’s
claim about this position.
1. Mr. Elliott Has Identified No Genuine Issue of Material Fact Regarding Whether Mr.
Wiatrowski Acted As a Selecting Official or Whether DOL Improperly Used Subjective
Criteria To Evaluate Candidates
Mr. Elliott’s first two arguments for why the Court should not grant summary judgment
for DOL with respect to his claim about his nonselection for Branch Chief for SI&P mirror the
arguments the Court rejected above regarding Mr. Elliott’s nonselection for the position of
Branch Chief for DCR. Specifically, Mr. Elliott argues that there is a genuine issue of material
fact regarding whether Mr. Doyle merely recommended candidates to Mr. Wiatrowski who acted
as the real selecting official. See Pl.’s Opp’n at 21. Mr. Elliott also argues that the selection
process for this position was characterized by improper consideration of subjective criteria. Pl.’s
Opp’n at 1–2. Because the Court has explained in detail above why these arguments fail,
elaborate discussion is unnecessary.
With respect to the first argument, the record reveals no genuine issue regarding whether
Mr. Doyle acted as a selecting official, no genuine issue regarding Mr. Wiatrowski’s (minor) role
in the selection process, and no reason why a jury might infer discrimination based on Mr.
Wiatrowski’s participation in the hiring process. See supra at pp. 11–15 (explaining these
deficiencies with respect to Mr. Elliott’s argument about his nonselection for Branch Chief for
DCR).
Regarding the second argument, Mr. Elliott has not shown that he is more qualified than
the selectee for the position. Mr. Elliott relies on the fact that he worked for his entire career in
the unit that Mr. Ranon-Hernandez was selected to lead while Mr. Ranon-Hernandez had not
done so. See Elliott Dep. 19:19-25, 20:1-9. As the Court explained above, this contention is
insufficient to demonstrate that Plaintiff is significantly more qualified than Mr. Ranon-
Hernandez. See Stewart, 352 F.3d at 429. A plaintiff must make such a showing to establish
that triable issues remain. See Holcomb, 433 F.3d at 897 (“[A] reasonable juror would usually
assume that the employer is more capable of assessing the significance of small differences in
the qualifications of the candidates, or that the employer simply made a judgment call.”). In
addition, Mr. Elliott has identified no evidence that Defendant’s reliance on subjective criteria—
indeed, criteria primarily listed in the vacancy announcement—might be pretext for
discrimination. See supra pp. 15–19 (explaining the circumstances under which an employer
may rely on subjective criteria to distinguish candidates). Accordingly, Mr. Elliott cannot
overcome summary judgment on these bases.
2. Mr. Elliott Has Identified No Genuine Issue of Material Fact Regarding the Purported
Destruction of Evidence Related to the Selection Process for Branch Chief for SI&P
Mr. Elliott next asserts that DOL failed to properly preserve documents related to the
selection process for Branch Chief for SI&P. Specifically, according to Mr. Elliott, Mr. Doyle
improperly failed to maintain a file, which included notes that he had written during candidate
interviews, and also failed to preserve “other materials,” including (apparently) application
materials forwarded to him by Human Resources. Pl.’s Opp’n to MSJ at 4; Def.’s Reply at 5.
Mr. Elliott argues that the purported destruction of this evidence warrants a negative inference
against DOL and that, in light of the inference and other favorable evidence, his claim should
survive DOL’s motion for summary judgment. But Mr. Doyle’s interview notes are in the
record before the Court—and, thus, can hardly be regarded as destroyed—and Mr. Elliott has not
shown how the purported destruction of any other evidence in Mr. Doyle’s file might establish
that the stated reasons for DOL’s hiring decision were pretext. Accordingly, the Court disagrees
that Mr. Elliott is entitled to bring this claim to trial.
The D.C. Circuit has recognized that “a negative inference may be justified where the
defendant has destroyed potentially relevant evidence.” Gerlich v. U.S. Dep’t of Justice, 711
F.3d 161, 170 (D.C. Cir. 2013). To show entitlement to an adverse inference, the requesting
party must show that:
(1) the party having control over the evidence had an obligation to
preserve it when it was destroyed or altered; (2) the destruction or
loss was accompanied by a ‘culpable state of mind’; and (3) the
evidence that was destroyed or altered was ‘relevant’ to the claims
or defenses of the party that sought the discovery of the spoliated
evidence, to the extent that a reasonable factfinder could conclude
that the lost evidence would have supported the claims or defense
of the party that sought it.
Vasser v. Shulkin, No. 14-0185, 2017 WL 5634860, at *3 (D.D.C. Nov. 22, 2017) (quoting
Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C. 2008)).
With regard to the purported destruction of Mr. Doyle’s interview notes, Mr. Elliott has
failed to make a fundamental showing—namely, Mr. Elliott has not demonstrated that DOL
destroyed this evidence. DOL admits that “[Mr.] Doyle had at the time of the selection a file that
contained the application materials forwarded to him by Human Resources and his interview
notes.” See Def.’s Reply at 5. However, DOL argues that “there is no indication that Phillip
Doyle’s records relating to the Branch Chief for [SI&P] position are ‘missing’” because
“Doyle’s interview notes for this position were included with his affidavit.” Def.’s Reply at 5.
Indeed, Mr. Elliott himself filed a copy of Mr. Doyle’s EEO affidavit. That document includes
an attachment labelled “Interview Notes Phillip M Doyle,” which is followed by three pages of
handwritten text that appear to be notes from Mr. Doyle’s interviews. See Ex. 9 at 37–40, ECF
No. 22-11. Mr. Elliott has not argued—and certainly has not demonstrated—that these are not
Mr. Doyle’s notes from his interviews with candidates for the Branch Chief for SI&P position,
that these notes were somehow altered, or that any other notes might have existed. Because Mr.
Elliott has not provided any reason to believe that spoliation occurred with respect to Mr.
Doyle’s notes, no negative inference is warranted.
With regard to the “other materials” purportedly in Mr. Doyle’s file, the Court need not
dwell on whether Mr. Elliott is entitled to a negative inference. Assuming that Mr. Elliott is
entitled to such an inference, this is not enough to avoid summary judgment. As the D.C. Circuit
explained in Grosdidier v. Broad. Bd of Governors, 709 F.3d 19 (D.C. Cir. 2013), even when
spoliated evidence may have been favorable to the movant, the adverse inference must also be
“sufficient to create a genuine issue of material fact.” Id. at 28. In that case, the Circuit
determined that a Title VII plaintiff was entitled to a permissive inference that she had performed
well during her interview because the defendant agency had improperly destroyed
contemporaneous notes taken by the interview panelists evaluating the plaintiff’s interview
performance. Id. However, the Circuit nonetheless upheld the district court’s grant of summary
judgment in favor of the agency, observing that “even if a factfinder could reasonably infer that
the destroyed notes contained information that might be favorable to [the plaintiff], favorable
evidence is not in all instances equivalent to evidence that would permit [the plaintiff] to survive
summary judgment.” Id. An inference that plaintiff had performed well in her interview did not
undermine the defendant agency’s explanation that it had selected a different candidate because
of that candidate’s knowledge, skills, and abilities. See id.
Here, DOL’s explanation for its hiring decision revolves squarely on Mr. Elliott’s
purportedly subpar interview performance and Mr. Ranon-Hernandez’s superior interview
performance. Mr. Elliott has not identified anything that might have been in Mr. Doyle’s file—
other than the interview notes discussed above—that might bear on this matter. An adverse
inference that the destroyed application materials would have been favorable to Mr. Elliott gets
him little more than the positive inference that can already be drawn from the fact that Human
Resources forwarded his application materials to Mr. Doyle and he was selected to interview for
the position. Thus, Mr. Doyle’s destruction of these application materials lends no support to
Mr. Elliott’s argument that DOL’s contentions about the candidates’ interview performances are
pretext for discrimination.
***
Mr. Elliott has not demonstrated that there exists a genuine issue about Mr. Wiatrowski’s
role in the hiring process for Branch Chief for SI&P, and Mr. Elliott has, likewise, failed to show
that DOL impermissibly utilized subjective criteria in evaluating applicants for that position.
Furthermore, DOL’s alleged failure to maintain materials from Mr. Doyle’s file does not create a
genuine issue of material fact sufficient to permit Mr. Elliott to bring this claim to trial. Because
no reasonable juror, based on these issues, either individually or combined, could find that DOL
discriminated against Mr. Elliott when it did not select him for Branch Chief for SI&P, the Court
grants DOL’s motion for summary judgment on this claim.
C. Branch Chief for PPD
As with the first two nonselections described above, Mr. Elliott contends that there are
triable issues about his nonselection for Branch Chief for PPD. Namely, he argues that there are
genuine issues of material fact concerning Mr. Wiatrowski’s role in this selection process and
concerning DOL’s use of subjective criteria to evaluate candidates. As previously, the Court
rejects both arguments. The Court, however, agrees with Mr. Elliott’s final argument regarding
this position: because Mr. Elliott has shown that DOL improperly destroyed evidence generated
during its selection for Branch Chief for PPD, he is entitled to an inference that those materials
would have included evidence favorable to his claim, and therefore, on this claim, Mr. Elliott has
produced sufficient evidence on which a reasonable juror might conclude that DOL’s stated
reason for the hiring decision was pretext. Accordingly, the Court denies DOL’s motion for
summary judgment on this claim.
1. Mr. Elliott Has Identified No Genuine Issue of Material Fact Regarding Whether Mr.
Wiatrowski Acted As A Selecting Official or Whether DOL Improperly Used Subjective
Criteria To Evaluate Candidates
Just as with the other positions, Mr. Elliott first argues that there are genuine issues of
material fact regarding Mr. Wiatrowski’s role in the selection process for the position of Branch
Chief for PPD and regarding Ms. Dickerson’s use of subjective criteria to evaluate candidates.
See Pl’s Opp’n to MSJ at 10–12, 18–19. The Court must again reject those arguments. The
record reveals no genuine issue regarding whether Ms. Dickerson acted as a selecting official
and no genuine issue regarding Mr. Wiatrowski’s role as a concurring official. In addition, Mr.
Elliott offers only speculative and unpersuasive reasons why a jury might infer discrimination
based on Mr. Wiatrowski’s participation in the hiring process. See Pl.’s Opp’n to MSJ at 5.
And, as the Court explained in detail above, DOL did not misstep in utilizing some subjective
criteria to evaluate candidates for this position. Mr. Elliott offers only cursory arguments to the
contrary. He fails to identify any specific instances in which DOL used subjective criteria to
evaluate candidates for Branch Chief for PPD, let alone explain why the use of subjective criteria
might be improper. See id. at 18–19. Accordingly, these are not bases for denying DOL’s
motion.
2. Mr. Elliott Is Entitled to a Spoliation Inference and His Claim Survives Summary
Judgment
Finally, Mr. Elliott contends that when Ms. Dickerson retired, she improperly shredded
notes from interviews that she had conducted for the Branch Chief for PPD position. Pl.’s Opp’n
to MSJ at 4. DOL admits that Ms. Dickerson shredded her interview notes when she retired in
July 2016, accordingly the Court need only address whether Mr. Elliott has made the necessary
showing for an adverse inference and, if so, whether, after considering the inference in
combination with all of the evidence of record, his claim survives summary judgment. Def.’s
Reply at 5. The Court agrees with Mr. Elliott that DOL had a duty to maintain theses records,
that an adverse inference is warranted, and that his claim survives DOL’s motion for summary
judgment.
As explained above, to show entitlement to an adverse inference, the requesting party
must show that:
(1) the party having control over the evidence had an obligation to
preserve it when it was destroyed or altered; (2) the destruction or
loss was accompanied by a ‘culpable state of mind’; and (3) the
evidence that was destroyed or altered was ‘relevant’ to the claims
or defenses of the party that sought the discovery of the spoliated
evidence, to the extent that a reasonable factfinder could conclude
that the lost evidence would have supported the claims or defense
of the party that sought it.
Vasser v. Shulkin, No. 14-0185, 2017 WL 5634860, at *3 (D.D.C. Nov. 22, 2017) (quoting
Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C. 2008)). Mr. Elliott has
satisfied each of these requirements.
First, Mr. Elliott has shown that DOL had a duty to preserve Ms. Dickerson’s files when
they were destroyed. According to DOL, Ms. Dickerson waited until her retirement in July 2016
to destroy all of her work-related records, including notes from the interviews that she conducted
for the Branch Chief for PPD position. Def.’s Reply at 5. DOL appears to contend that Mr.
Elliott is not entitled to an adverse inference because the documents were shredded two years
after the selectee for the position had been notified of her selection. See Def.’s Reply at 5. DOL
ignores, however, that “[a] party has a duty to preserve potentially relevant evidence whenever
‘litigation is reasonably foreseeable.’” Vasser, 2017 WL 5634860, at *2 (quoting Gerlich, 711
F.3d at 170). By July 2016 when Ms. Dickerson shredded her interview notes, Mr. Elliott had
already filed the present action. As litigation was underway, DOL clearly had an obligation to
maintain relevant evidence in its possession.
The Court also concludes that Mr. Elliott has satisfied his obligation of showing that the
records were destroyed with the requisite culpable state of mind. “[T]o justify the issuance of an
adverse inference instruction, the destruction need not be purposeful, and negligent spoliation
suffices.” Vasser, 2017 WL 5634860, at *6 (quoting Mahaffey v. Marriott Int’l, Inc., 898 F.
Supp. 2d 54, 61 (D.D.C. 2012)); Grosdidier, 709 F.3d at 27 (a spoliation inference is
“appropriate in light of the duty of preservation notwithstanding the fact that the destruction was
negligent”). Thus, in Vasser v. Shulkin, this Court recently concluded that the Veterans
Administration had the requisite culpable state of mind to warrant an adverse inference
instruction when it destroyed documents related to a litigant’s claims pursuant to a record control
schedule after litigation had already begun. 2017 WL 5634860, at *6. Ms. Dickerson’s
destruction of her interview notes contravened the duties of a party in litigation, even if there is
no evidence that she acted in bad faith when she destroyed the records upon her retirement.
Lastly, the Court concludes that Mr. Elliott has shown that the records were relevant to
his claims. To prove relevance, a party need only show that “a reasonable factfinder could
conclude that the lost evidence would have supported the claims or defense of the party that
sought it.” Mazloum, 530 F. Supp. 2d at 291. In Talavera v. Shah, 638 F.3d 303 (D.C. Cir.
2011), the D.C. Circuit found that destroyed interview notes were relevant to a Title VII claim
because the agency had defended its non-selection of the plaintiff based on her purportedly poor
performance during an interview. Id. at 312. The Circuit explained that “the notes might have
undermined [the] claim that the [selectee] exhibited more knowledge of the job than [the
plaintiff] did and might also have confirmed [the plaintiff’s] assertion that [the selecting official]
asked her different questions than he asked of the men he interviewed.” Id. Just as in Talavera,
DOL relies heavily on Mr. Elliott’s purportedly inferior interview performance to explain why it
did not select him for Branch Chief for PPD. See Def.’s MSJ at 13 (explaining that “Dickerson
did not select Elliott for this position because, based on his interview responses, he ‘lacked
recent economic survey experience.’”). Mr. Elliott might have used Ms. Dickerson’s interview
notes to undermine DOL’s contentions—for example, by identifying recorded instances in which
he discussed his recent economic survey experience. The Court has no difficulty concluding that
the interview notes are relevant to Mr. Elliott’s claim. In sum, a reasonable jury could conclude
that the non-accidental destruction of interview notes supports an inference that the notes might
have contained information favorable to Mr. Elliott’s claim. 5
Considering the spoliation inference and Mr. Elliott’s other evidence of unlawful sex and
race discrimination—namely, evidence that the selectee for the position was a white woman, not
a member of the same protected groups as Mr. Elliott, see Def.’s MSJ at 13—the Court finds that
Mr. Elliott has offered sufficient evidence that DOL’s reasons for failing to select him for the
Branch Chief for PPD position was pretext. Unlike the materials Mr. Elliott claims that Mr.
Doyle destroyed, Ms. Dickerson’s interview notes bear directly on the legitimacy of DOL’s
explanation for its hiring decision. Because Mr. Elliott has produced sufficient evidence for a
reasonable jury to find pretext, summary judgment is inappropriate. Accordingly, the Court
denies DOL’s motion with regard to this claim.
5
Though the Court concludes that an adverse inference is justified, it “certainly do[es]
not suggest that a jury must or should draw an adverse inference. Hamilton v. Geithner, 666
F.3d 1344, 1355–56 (D.C. Cir. 2012).
V. CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has produced sufficient evidence
to raise triable issues regarding his nonselection for the Branch Chief for PPD position. Plaintiff
has not, however, raised such issues regarding his nonselections for the Branch Chief for DCR
and the Branch Chief for SI&P positions. Accordingly the Court grants in part and denies in part
DOL’s motion for summary judgment. An order consistent with this Memorandum Opinion is
separately and contemporaneously issued.
Dated: January 26, 2018 RUDOLPH CONTRERAS
United States District Judge