Bennett v. Chao ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
JOHN C. BENNETT, JR., )
)
Plaintiff, )
)
v. ) Civil Action No. 07-1951 (RCL)
)
HILDA SOLIS, )
SECRETARY OF LABOR )
)
Defendant.1 )
____________________________________)
MEMORANDUM OPINION
Plaintiff John C. Bennett, Jr., a former employee in the Office of Federal Contact
Compliance Programs (“OFCCP”) of the Department of Labor (“Department”), brings this
action against defendant Hilda Solis in her official capacity as Secretary of Labor. Plaintiff
alleges that the Department in willfully terminating his employment discriminated against him
on account of his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-16, and on account of his age in violation of the Age Discrimination in Employment Act
of 1967, 29 U.S.C. §§ 621 et seq. This matter now comes before the Court on the Department’s
Motion [35] for Summary Judgment. Upon consideration of the motion, the opposition and reply
thereto, the entire record herein, and the applicable law, the Court concludes that the
Department’s motion should be granted.
I. FACTUAL BACKGROUND
Plaintiff John C. Bennett, Jr., was, at all times relevant up to his termination, a GS-13
Senior Compliance Officer in the Branch of Quality Assurance (“BQA”) in the Office of Federal
1
Pursuant to Federal Rule of Civil Procedure 25(d)(1), Hilda L. Solis, Secretary of Labor, is substituted for her
precedecessor, Elena L. Chao.
Contact Compliance Programs (“OFCCP”) of the Employment Standards Administration, a
component of the U.S. Department of Labor (“Department”). (Bennett Decl. ¶ 3.) Plaintiff is a
Caucasian male and was 71 years old when he was discharged. (Id. at ¶ 2.) He had been an
employee of the OFCCP for 30 years. (Id. at ¶ 3.) Prior to his removal, plaintiff was assigned
along with others in his division to work on a project named “Project to Assist Regions
Improving Investigations,” also referred to as the Systemic Discrimination Project, which
plaintiff understood was a “major project” that was considered “important” within the division.
(Id. at ¶4; Def.’s Mot. for Summ. J. (“Def.’s Motion”) Ex. A [35-2] at 108.) This project was a
two-phase audit in which the purpose of phase one was to ascertain the “predictors” of a federal
contractor engaging in systemic discrimination in its employment practices. (Deutermann Dep. at
43:5-9, 58:16-21, Ex. 7, Sept. 22, 2009.) The purpose of phase two was aimed at identifying the
particular investigative techniques used by compliance officers. (Id.)
Plaintiff was notified on May 27, 2005, of a decision to remove him from his position
with the Department and from the Federal Service. (Deutermann Dep. Ex. 2.) The decision to
remove plaintiff was made solely by Cynthia Deutermann, who had recently been appointed to
the position of Acting Deputy Director of the Division of Program Operations in OFCCP.
(Deutermann Decl. on Summ. J. Mot. (“Deutermann Decl.”) ¶¶ 1, 17.) Ms. Deutermann was
appointed to this position just prior to her assignment as the deciding official in this matter.
(Deutermann ROI Aff. ¶¶ 3-4.) Before receiving this appointment, Ms. Deutermann was not in
the chain of command of plaintiff, and has no recollection of how she was selected to be the
deciding official in this matter. (Bennett Decl. ¶ 20; Deutermann Dep. 24:1-25:3.) Ms.
Deutermann was 63 years old when she terminated plaintiff and, like plaintiff, is Caucasian.
(Deutermann Decl. ¶ 19.) Ms. Deutermann based her decision to remove plaintiff on a “Proposal
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to Remove” dated March 11, 2005, that had been prepared by plaintiff’s immediate supervisor,
Ms. Carla Johnson, following plaintiff’s placement on a Performance Improvement Plan (“PIP”)
for the period from May 7, 2004 through November 24, 2004. (Id. at ¶ 2.) Prior to acting as the
deciding official in plaintiff’s case, Ms. Deutermann had no previous experience with and knew
little about PIP’s or decisions on proposed removals of federal employees. (Deutermann Dep.
28:5-29:10.)
The Proposal to Remove contained a narrative by Ms. Johnson describing plaintiff’s
various performance deficiencies including a lack of responsiveness, failure to complete projects
and meet deadlines, incorrect and incomplete execution of forms, a lack of understanding of the
compliance process, and other deficiencies. (Deutermann Dep. Ex. 12 and Atts.) In addition to
the narrative, the Proposal to Remove contained numerous attachments including examples of at
least twelve case files in which plaintiff’s performance was deficient, e-mail exchanges, and
periodic evaluations during the PIP period. (Deutermann Decl. ¶ 5, Ex. 2 at 3-4.) Specifically,
Ms. Deutermann concluded that plaintiff had failed to meet a quantitative performance standard
for case reviews during his PIP which left him below the acceptable performance level both in
terms of quality and quantity of work. (Deutermann Dep. 55:8-56:2; Deutermann Decl. Ex. 2 at
2.) This quantitative performance standard required plaintiff to complete 60% of all casework
assigned to him at an “acceptable” level “upon first submission.” (Deutermann Dep. Ex. 12 at
Bennett 000013, 000017.) Regarding the qualitative performance standard, Ms. Deutermann
found that plaintiff failed to manage his time sufficiently to meet the 60% threshold.
(Deutermann Dep. Ex. 12 at 2.) Ms. Deutermann also determined that the information in the
Proposal to Remove established that plaintiff had continuously failed to raise his performance to
the required level, that this failure jeopardized the completion of an important project (the
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Systemic Discrimination Project) which placed an unjustifiable burden on other employees, and
that plaintiff had been put on notice of his deficiencies and had been given ample opportunity to
improve his performance. (Deutermann Decl. ¶¶ 6-7.)
Based on Ms. Deutermann’s review of the information contained in the Proposal to
Remove, as well as plaintiff’s response in which he did not attempt to rebut or provide any
documentation to contradict the assertions in the Proposal regarding plaintiff’s performance, she
determined that plaintiff failed to raise his performance to the level required by the PIP and thus
should be removed from his position and the Federal Service. (Id. at ¶¶ 5-7.) Plaintiff was
notified of this removal decision on May 27, 2005, and the decision became effective on May 28,
2005. (Deutermann Dep. Ex. 2.)
In the same time period, Ms. Deutermann was presented with a Proposal to Remove for a
different employee working in the same office as plaintiff. (Deutermann Dep. Ex. 10.) This
employee, Ms. Ansonia Harris, is an African American female who was 68 years old and a GS-
12 Compliance Officer when her supervisor Mr. Joseph Jackson, Jr. recommended that she be
removed from federal service because she failed to raise her performance to the required level
under a PIP that was identical to plaintiff’s. (Deutermann Dep. Ex. 10; Pl.’s Opp’n to Def.’s Mot.
For Summ. J. (“Pl.’s Opp’n”) [47] at 4.) Unlike in plaintiff’s case, however, Ms. Deutermann
decided on August 18, 2005 to not remove Ms. Harris as a result of “insufficient documentation”
for her “to make a determination” to terminate Ms. Harris. (Deutermann Dep. Ex. 9 at 1-2.)
Plaintiff argues that Ms. Deutermann’s decision to not terminate Ms. Harris despite her deficient
performance is evidence of defendant’s discriminatory treatment of him by way of his allegedly
unlawful termination. (Pl.’s Opp’n [47] at 3-6, 13-17.)
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II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). The burden
is on the moving party to demonstrate that there is an “absence of a genuine issue of material
fact” in dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The non-moving party’s
evidence is to be believed, and all reasonable inferences from the record are to be drawn in the
non-moving party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 255 (1986). It is not
enough, however, for the non-moving party to show that there is “some factual dispute,” because
“only disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Id. at 247-48. In addition, summary
judgment is appropriate if the non-movant fails to offer “evidence on which the jury could
reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. In deciding whether summary
judgment is warranted for the defendant, the Court will consider all relevant evidence presented
by the plaintiff and defendant. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir.
2008). Finally, in an employment case, it is the function of the jury and not the judge to weigh
evidence and make credibility determinations. Reeves v. Sanderson Plumbing Products, Inc., 530
U.S. 133, 150-51 (2000); see George v. Leavitt, 407 F.3d 405, 413 (D.C. Cir. 2005) (“at the
summary judgment stage, a judge may not make credibility determinations, weigh the evidence,
or draw inferences from the facts”).
III. TITLE VII AND ADEA CLAIMS
Plaintiff was terminated from employment by the Department and has alleged racial and
gender discrimination claims against defendant in violation of Title VII of the Civil Rights Act,
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42 U.S.C. § 2000e et seq. Plaintiff also claims that the Department discriminated against him on
account of his age in violation of the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 623(a)(1). The Department contends that it terminated plaintiff not due to
discrimination but rather for a legitimate reason, namely that plaintiff was put on a PIP due to
inadequate work product, failed to raise his performance to the minimum acceptable level under
the PIP and thus was justifiably terminated. (Deutermann Dep. Ex. 2 at 1-2, 6, Ex. 12 at 1-2.) As
set forth below, the Court agrees with the Department and will grant the Department’s motion for
summary judgment on both claims.
A. Legal Standards
The Supreme Court has established a burden-shifting approach that applies to
employment discrimination cases when the plaintiff lacks direct evidence of discrimination. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). This approach, the McDonnell
Douglas framework, applies to both Title VII and ADEA claims. Chappell-Johnson v. Powell,
440 F.3d 484, 487 (D.C. Cir. 2006) (citing Carter v. George Washington Univ., 387 F.3d 872,
878 (D.C. Cir. 2004)). To proceed under the McDonnell Douglas standard, a plaintiff “must
carry the initial burden under the statute of establishing a prima facie case of [race, sex, age]
discrimination.” McDonnell Douglas Corp., 411 U.S. at 802.
In Brady v. Office of Sergeant at Arms, the D.C. Circuit further clarified the District
Court’s analysis in Title VII disparate-treatment suits. 520 F.3d 490, 494 (D.C. Cir. 2008).
Stating that the prima facie determination had become a “largely unnecessary sideshow,” the
court held that in Title VII disparate-treatment suits where an employee has suffered an adverse
6
employment action,2 the District Court on summary judgment need not determine if the plaintiff
presents a prima facie case of discrimination if the defendant has asserted a legitimate, non-
discriminatory reason for the challenged actions. Id. As a result, this Court is left with “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.
Thus, the Court must first determine whether defendant has articulated a legitimate non-
discriminatory reason for the plaintiff’s termination. See McDonnell Douglas Corp., 411 U.S. at
802. If so, the Court must then examine the evidence to determine whether a reasonable jury
could deem this asserted reason mere pretext, designed to conceal intentional race, sex, and/or
age discrimination. Brady, 520 F.3d at 494; see also Chappell-Johnson v. Blair, 574 F. Supp. 2d
87, 96 n. 9 (D.D.C. 2008), aff’d, 358 Fed. App’x 200 (D.C. Cir. 2009) (applying Brady’s
methodology to claims under the ADEA).
Subsequent to Brady, the Supreme Court further focused the ADEA standard. It held, “[a]
plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a
preponderance of the evidence, that age was the ‘but-for’ cause of the challenged adverse
employment action.” Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2352 (2009). Put
differently, it is not enough that age was one motivating factor in an adverse employment action;
rather, it must be the case that the adverse action would not have occurred in the absence of age
as a consideration. See id. at 2350. Per Brady and Gross, the Court will decide whether sufficient
2
Termination of employment constitutes an adverse employment action. See Mastro v. Potomac Elec. Power Co.,
447 F.3d 843, 851 (D.C. Cir. 2006).
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evidence exists for a reasonable jury to find that defendant’s proffered reasons for terminating
plaintiff mask discriminatory intent that rendered age the but-for cause of plaintiff’s termination.
B. Analysis
1. Defendant has articulated a legitimate non-discriminatory reason for
plaintiff’s termination.
Defendant claims that it terminated plaintiff pursuant to the Proposal to Remove which
was based on plaintiff’s work product or lack of work product during the PIP period.
(Deutermann Dep. Ex. 2 at 1-2, Ex. 12 at 1-2 (detailing plaintiff’s numerous performance
deficiencies).) This is analogous to the reason proferred by the defendant Department of
Agriculture in Chowhudry v. Schafer, in which this Court found that the Department’s reason
was legitimate and non-discriminatory. 587 F. Supp. 2d 257 (D.D.C. 2008). Like in Chowhudry,
plaintiff was placed on a PIP and was given an opportunity to raise his performance to an
acceptable level but failed to do so. (Id. at 264; Deutermann Dep. Ex. 2 at 1-2.) In addition,
plaintiff has not rebutted or refuted the substance of this legitimate non-discriminatory reason
offered by defendant for his dismissal. (Reply Mem. in Supp. of Def.’s Mot. for Summ. J.
“Def.’s Reply” [52] at 1-2; Deutermann Decl. ¶ 6.) Thus, defendant has met his burden of
articulating a legitimate non-discriminatory reason for terminating plaintiff and now the Court
must determine whether a reasonable jury could deem this asserted reason mere pretext.
Chowhudry, F. Supp. 2d at 587.
2. Plaintiff’s evidence is insufficient to establish pretext for discrimination.
Plaintiff has argued that defendant’s alleged performance-based reasons for terminating
him were a mere pretext and concealed the real reason for his termination, namely discrimination
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on account of race, sex, and age. (Pl.’s Compl. [1] at 1-2; Pl.’s Opp’n [47] at 3-7.) As set forth
below, this Court does not believe that a reasonable jury could find that defendant’s articulated
reason was pretextual.
Evidence of pretext may include variant treatment of similarly situated employees,
discriminatory statements by decision makers, and irregularities in the stated reasons for the
adverse employment decision. Brady, 520 F.3d at 495 n. 3. In addition, “a jury can infer
discrimination from the combination of … any evidence the plaintiff presents to attack the
employer’s proferred explanation for its actions” and from “any further evidence of
discrimination that may be available to the plaintiff (such as independent evidence of
discriminatory evidence or attitudes on the part of the employer) ….” Brown v. Brody, 199 F.3d
446, 458 (D.C. Cir. 1999).
Plaintiff argues that a reasonable jury could reject defendant’s explanation for his
termination on any of five separate bases. First, plaintiff contends that defendant’s discrimination
against him is proven by way of a comparison between defendant’s treatment of him and Ms.
Harris, a supposedly similarly situated employee. As defendant points out, however, it should be
noted from the outset that this comparator evidence undermines plaintiff’s claim of age
discrimination because Ms. Harris was a similar age to plaintiff and also failed a similar PIP but
was not terminated. (Def.’s Mot. for Summ. J. [35] at 18-19; Bennett Decl. ¶¶ 2, 17-18.) Second,
plaintiff contends that the PIP he was subjected to was utterly subjective and thus constituted a
pretext for discrimination. Third, plaintiff offers so-called evidence that allegedly proves a
discriminatory attitude on the part of the OFCCP as an organization in general. Fourth, plaintiff
offers evidence with which he seeks to show that plaintiff was a good employee leading up to the
PIP period, thus suggesting that the PIP was instigated for discriminatory reasons. Fifth, plaintiff
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seeks to discredit Ms. Deutermann in various ways and in effect tries to show that Ms.
Deutermann’s treatment of plaintiff is evidence of discrimination. As set forth below, the Court
rejects all five of plaintiff’s arguments.
A. Plaintiff and Ms. Harris Are Not Similarly Situated
Plaintiff argues that evidence of discriminatory bias on the part of defendant is proven by
comparing defendant’s treatment of plaintiff with defendant’s treatment of Ms. Harris, another
Compliance Officer in the OFCCP who was of a similar age to plaintiff but, unlike plaintiff, was
African American and female, which plaintiff alleges was what distinguished their disparate
treatment by defendant. (Pl.’s Opp’n [47] at 22-27.) Plaintiff and Ms. Harris were both placed on
similar PIP’s, both were the subjects of Proposals to Remove that were reviewed by Ms.
Deutermann, and only plaintiff was terminated, even though plaintiff claims that Ms. Harris’
performance deficiencies “were far more damning” than were his. (Id. at 15.)
Plaintiff has attempted to produce evidence suggesting that defendant treated other
employees of a different race and sex more favorably in the same factual circumstances. Brady
acknowledged that this is a tactic often used by employee/plaintiffs to prove pretext on the part
of the employer/defendants. 520 F.3d at 495. For this tactic to succeed, however, the plaintiff and
the comparator employee (in this case, Ms. Harris) must be “similarly situated.” Id. Regarding
this “similarly situated” requirement, an inference of discrimination should not be drawn from
disparate treatment of comparable employees unless “all of the relevant aspects of [his]
employment situation [are] ‘nearly identical’” to those of the comparator. Neuren v. Adduci,
Mastriani, Meeks, & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995); Evans v. Holder, 618 F. Supp.
2d 1, 11 (D.D.C. 2009). In addition, the Second Circuit has stated that “whether two employees
are similarly situated ordinarily presents a question of fact for the jury.” Graham v. Long Island
10
R.R., 230 F.3d 34, 39 (2d. Cir. 2000). However, in Udoh v. Trade Ctr. Mgmt. Assoc.’s the court
indicated that for a finding that two employees were similarly situated, a plaintiff must generally
show that the more favorably treated coworker “dealt with the same supervisor, ha[s] been
subject to the same standards and ha[s] engaged in the same conduct without such differentiating
or mitigating circumstances that would distinguish their conduct or the employer’s treatment of
them for it.” 479 F. Supp. 2d 60, 64 (D.D.C. 2007). As discussed below, based on the specific
facts of this case, no reasonable jury could conclude that plaintiff and Ms. Harris are similarly
situated.
Some of the facts of this case tend to suggest that plaintiff and Ms. Harris were similarly
situated. First, Ms. Deutermann decided both plaintiff and Ms. Harris’ cases based on their work
on the Systemic Discrimination Project during their respective PIP periods. (Deutermann Decl.
¶¶ 2-3, 8.) Second, the performance standards specified in plaintiff’s and Ms. Harris’ PIP’s were
identical. (Deutermann Dep. Ex. 10 at Bennett 000001355-57, Ex. 12 at Bennett 000020-23.)
Third, unlike the regular performance standards of Compliance Officers which never specified a
number of cases that had to be produced in any particular period of time, the PIP’s on which
plaintiff and Ms. Harris were placed contained quotas of cases they were required to produce.
(Deutermann Dep. Ex. 12 at Atts. 1, 4; Bennett Decl. ¶ 15.) Fourth, both plaintiff and Ms. Harris
apparently received satisfactory performance ratings from their supervisors prior to the periods
leading up to the issuance of their respective PIP’s. (Copening ROI. Aff. at 2-3; Deutermann
Dep. Ex. 10 at 10.) Fifth, both plaintiff and Ms. Harris made some similar objections to their
PIP’s, namely that they were subjective and contained vague criteria. (Deutermann Dep. Ex. 11
at 5, Ex. 13 at 1, 5-6; Pl.’s Opp’n [47] at 11.)
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On the other hand, several facts of this case cut against the idea that plaintiff and Ms.
Harris were similarly situated as comparators, and consideration of these facts compels a finding
that the two were not similarly situated. First, although plaintiff and Ms. Harris both worked in
the same office, they held different positions; plaintiff was a GS-13 Senior Compliance Officer
while Ms. Harris was a GS-12 Compliance Officer. (Deutermann Decl. ¶¶ 1, 12; Deutermann
Dep. Ex. 4 at ¶ 12.) This tends toward a finding that the two weren’t similarly situated. See
Barbour v. Browner, 181 F.3d 1342 (D.C. Cir. 1999) (concluding that two EPA employees with
similar job descriptions, one a GS-12 and the other a GS-13, were not similarly situated);
(Deutermann Dep. Ex. 4 at ¶ 12 (stating that Ms. Harris as a GS-12 Compliance Officer would
be expected to perform at a different level than a Senior Compliance Officer at the GS-13 level);
Deutermann Dep. Ex. 13 at 5 (a statement from Ms. Harris arguing that the performance
standards and critical elements in her PIP were inappropriate for someone at the GS-12 level
“and were only appropriate for someone at least at the GS-13 level.”); Bennett Decl. ¶¶ 5-6
(detailing the myriad of responsibilities that plaintiff held as a Senior Compliance Officer).)
Second, unlike Ms. Harris, plaintiff was a complainer, which detracts from the idea that
he was terminated because of discriminatory reasons. (See Cambetta ROI Aff. at ¶¶ 8-9 (stating
that plaintiff referred to the Division in which he worked as a “Howard university sorority” and
that plaintiff was dissatisfied that his supervisor Ms. Johnson had promoted at least two African
American females whereas his requests for fair treatment and promotion were disregarded).
Third, plaintiff during his PIP period turned in most if not all of his cases late whereas all of Ms.
Harris’ cases during her PIP period were turned in by the proper deadline or earlier, further
demonstrating Ms. Harris’ superior work ethic. (Deutermann Dep. Ex. 4 at 5, Ex. 12 at Bennett
000017, Att. 7 at Bennett 000089.)
12
Fourth, when confronted with the Proposal to Remove, Ms. Harris hired an attorney and
defended herself on the merits while plaintiff did not do this but rather refuted the methodology
of his PIP as being subjective and pretextual. (Deutermann Dep. Ex. 13; Deutermann Decl. Ex.
3; Cambetta ROI Aff. at ¶ 9.) Ms. Harris’ defense on the merits influenced Ms. Deutermann’s
decision not to terminate her, as Ms. Deutermann explicitly stated that she did not have adequate
documentation to confirm Ms. Harris’ supervisor’s allegations made in the Proposal to Remove
regarding Ms. Harris’ supposedly deficient performance, and as discussed below, Ms. Harris was
able to refute some of the allegations made by her supervisor as contradictory and incorrect.
(Deutermann Dep. Ex. 9 at 000001289-91 (including the submission of evidence by Ms. Harris
which tends to directly rebut several of her supervisor’s allegations regarding her performance).)
In addition, in response to the Proposal to Remove, Ms. Harris submitted to her supervisor letters
of recommendation from coworkers that spoke of her work ethic, team player attitude, and the
significant contribution that she made to the DPO. (Deutermann Dep. Ex. 13 at Bennett
00001328-1332.)
By contrast, it appears from the record that plaintiff during the PIP period did not try to
improve his performance by obtaining help from his supervisor or others in the office, whereas
Ms. Harris did seek such help and did attempt to improve. (Deutermann Dep. Ex. 12 at Bennett
000016 (plaintiff’s supervisor stating that he stopped by plaintiff’s cubicle on various occasions
to offer assistance but plaintiff declined and instead chose to work on personal projects such as
vacation reservations); Deutermann Dep. Ex. 13 at Atts. 2-3 (email and letter by Ms. Harris to
managers requesting the Systemic Discrimination Training that she failed to receive but other
team members had received).) The record reflects the numerous attempts by plaintiff’s
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supervisor to assist plaintiff in raising his performance to the required level. (Deutermann Dep.
Ex. 12 at Att. 7.)
Fifth, Ms. Deutermann decided to not terminate Ms. Harris because she determined there
was “insufficient documentation for” her “to make a determination,” whereas Ms. Deutermann
felt there was sufficient documentation to support her decision to terminate plaintiff.
(Deutermann Dep. Ex. 3 at 5, Ex. 9 at 1-2; Deutermann Decl. ¶¶ 1-5, 10, 14.) It was Ms.
Deutermann’s understanding that her job was to evaluate the Proposal to Remove on a stand
alone basis, without following up with the supervisor who authored the Proposal. (Deutermann
Decl. ¶ 3.) In addition, it was Ms. Deutermann’s understanding that “a supervisor’s description
of an employee’s inadequate performance was not enough to support a removal; rather, the
supervisor’s assertions of inadequate performance had to be supported by documentation from
the period of the PIP that could be independently evaluated and considered on making the
removal decision.” (Id.) As defendant noted, Ms. Deutermann testified that she obtained
information about the procedures to follow from the agency’s personnel office, and plaintiff has
offered no evidence suggesting that Ms. Deutermann’s understanding of this was incorrect.3
(Deutermann Dep. at 27:15-28:4, 92:3-15; Def.’s Reply [52] at 5.)
Upon reviewing Ms. Harris’ Proposal to Remove as well as the accompanying documents
and Ms. Harris’ response to the Proposal, Ms. Deutermann determined that Ms. Harris’
supervisor Mr. Jackson “did not provide sufficient documentation of Ms. Harris’ work product
during the PIP period… to support the assertions of poor performance he made in her proposal.”
(Deutermann Decl. ¶10.) Defendant points to the Deutermann Declaration and cites several
aspects of this inadequate documentation, none of which plaintiff has disputed. (Def.’s Reply
3
At least one court in our circuit has found that “‘[o]nce the employer has articulated a non-discriminatory
explanation for its action,’ the Court will not find pretext ‘if the employer honestly believes in the reasons it offers.’”
Willingham v. Gonzales, 391 F. Supp. 2d 52, 63 (D.D.C. 2005).
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[52] at 6-7; Deutermann Decl. ¶¶ 10-12, 14-15; Deutermann Dep. Ex. 4 at 5.) In particular, Mr.
Jackson provided no examples of Ms. Harris’ work product for the first 90 days of the PIP, but
instead included examples of work product prepared by Ms. Harris before the PIP period started.
Deutermann Decl. ¶ 10. In addition, “Mr. Jackson also reported that Ms. Harris had not been
provided with sufficient ‘substantive assignments’ to assess her performance during that three-
month period.”4 (Id.) Furthermore, Mr. Jackson made some statements in his Proposal to
Remove that contradicted each other, including a large discrepancy concerning the number of
case files for which Ms. Harris was responsible during the PIP period. (Id. at ¶ 12; Deutermann
Dep. Ex. 12 (At one point in the Proposal to Remove Mr. Jackson stated that Ms. Harris had a
total of 31 case files to review to demonstrate her ability to perform under the PIP, but on the
very same page Mr. Jackson wrote that Ms. Harris was only assigned to work on 11 files during
the PIP period.).) This contradiction further supports Ms. Deutermann’s conclusion that Mr.
Jackson failed to properly document his assertions of Ms. Harris’ poor performance and also
supports Ms. Deutermann’s decision not to terminate Ms. Harris.
In contrast to Ms. Harris’ situation, plaintiff presented no such evidence to rebut his
supervisor’s claims of his inadequate performance. (Deutermann Decl. ¶ 6.) In addition,
plaintiff’s supervisor Ms. Johnson in her Proposal to Remove plaintiff “was diligent in
documenting [plaintiff’s] performance during the course of the PIP including written
performance feedback specifically addressing the individual cases… [and] also provided
documentation of meetings to discuss work products and offers to provide assistance to
[plaintiff] if he felt that it was needed. (Deutermann Dep. Ex. 4 at 5.) Therefore, Ms. Deutermann
independently determined that there was enough documentation accompanying plaintiff’s
4
As this three month period was a majority of the total five month PIP period, this was a significant deficiency.
(Deutermann Decl. ¶ 10.)
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Proposal to Remove with which to find that plaintiff had failed to raise his performance to the
level required by the PIP. (Deutermann Decl. ¶ 5.)
Contrary to plaintiff's claim that “defendant is hard-pressed to explain its disparate
treatment of Mr. Bennett and Ms. Harris[,] [i]n fact, it did not even try[,]” defendant has
produced ample justification and evidence explaining this disparate treatment. (Pl.’s Opp’n [47]
at 5.) For all of the aforementioned reasons, the Court finds that plaintiff and Ms. Harris were not
similarly situated and thus their disparate treatment is not evidence of discrimination on the part
of defendant.
B. Subjectivity of the PIP
Plaintiff also argues that pretext of discrimination is evidenced by the “subjectiv[ity]” of
the PIP that he was forced to undergo. (Pl.’s Opp’n [47] at 11.) The Court does not, however,
believe a reasonable jury could find that the PIP was subjective, and even if a reasonable jury
could conclude this, it is not the case that a finding of discrimination would necessarily follow
from this conclusion. The Court will cover some threshold matters and will then examine the
plaintiff’s arguments in favor of the PIP’s subjectivity.
As defendant notes, plaintiff does not dispute that the standards and procedures in the
PIP’s of both plaintiff and Ms. Harris were identical, and since plaintiff and Ms. Harris are
members of different races and genders, plaintiff’s allegations of race and gender discrimination
by defendant are undermined if not negated. (Def.’s Reply [52] at 12; see Forman v. Small, 271
F.3d 285, 291 (D.C. Cir. 2001) (“the question before the court is limited to whether Dr. Forman
produced sufficient evidence of … discrimination, not whether he was treated fairly.”).) In
addition, plaintiff had the opportunity to challenge these standards and procedures by filing a
union grievance or appeal to the Merit Systems Protection Board (as his Proposal to Remove
16
advised him to do), but he chose neither option. (Def.’s Reply [52] at 12; Deutermann Decl. at
Bennett 00298.) Further, defendant aptly points out that throughout plaintiff’s complaints on the
supposed subjectivity of the PIP, plaintiff “does not establish that the procedures violated any
agency regulation or any other legal requirement.” (Def.’s Reply [52] at 2.) The Court will now
examine the arguments plaintiff uses to attempt to demonstrate the subjectivity of his PIP.
Plaintiff argues that the numerical standards contained in his PIP were arbitrary because
they were changed during the term of the PIP (from 80% to 60% production rates) and because
there were no numerical standards in their work plans or any requirement that work be
acceptable on initial supervisory review. (Deutermann Dep. Ex. 12 at Atts. 1, 4, Ex. 10 at
Bennett 000001345-50.) Plaintiff argues that this is particularly prescient because he only missed
the 60% cutoff by a 3% margin. (Pl.’s’s Opp’n [47] at 13-14.) However, plaintiff has offered no
evidence or law which suggests any illegality or impropriety in the practice of an employer
requiring an employee during a PIP to submit different work product than he normally would
were he not on a PIP, and the Court is not aware of any such law. In addition, plaintiff does not
dispute that he missed the 60% mark, as noted above, and he does not dispute that 60% is an
objective criterion; nowhere in plaintiff’s two responses to his Proposal to Remove does he
allege that 60% is a subjective criterion, rather he claims that it is an arbitrary number, which is
not an effective argument. (Id.; see Deutermann Decl. Ex. 3; Forman, 271 F.3d at 291 (stating
that absent proof of discrimination, whether an employee was treated fairly is irrelevant).)
Plaintiff also argues that the timeframes contained in his PIP were arbitrary because he
“was required to complete his reviews on very short deadlines.” (Pl.’s Opp’n [47] at 11;
Deutermann Dep. Ex. 12 at 103, 107, 109.) As defendant points out, however, plaintiff has not
offered any evidence showing or suggesting that other Department employees, including Ms.
17
Harris, were subjected to different numerical criteria during their performance reviews or were
not required to complete their work on short deadlines. (Def.’s Reply [52] at 12.)
Furthermore, the union representative, Ms. Copening, thought that plaintiff’s PIP “was
flawed in that it provided no measurable or quantifiable methods to ensure Mr. Bennett’s
performance. The language was couched in terms of his work being ‘acceptable’ to his
supervisor. To say that it was subjective would be a gross understatement.” (Copening ROI Aff.
[47-6] at 3.) This is a misstatement of the criteria used in the PIP, however, because as defendant
points out, the PIP states objectively measurable criteria in the sentences preceding the
“acceptable” to the supervisor language. (Def.’s Reply [52] at 13 n. 7.) Specifically, the PIP
required that plaintiff among other things:
“must correctly complete the forms that were developed for this audit to gather all
pertinent data. [Plaintiff] must analyze the reasons that the investigation found
systemic discrimination and analyze the initial indicators that did not materialize.
[Plaintiff] need[s] to review all documents before they are submitted to ensure the
consistency and the accuracy of the data.”
(Deutermann Decl. Att. 1 at Bennett 000022.) This language can be contrasted with other
language that our Circuit and others have deemed subjective in the context of judging
performance, namely “dedicated”, “enthusiasm”, “interpersonal skills”, and “being upbeat.” See,
e.g. Aka v. Wash. Hosp. Ctr., 165 F.3d 1284, 1298 (D.C. Cir. 1998); Liu v. Amway Corp., 347
F.3d 1125, 1137 (9th Cir. 2003). So, contrary to plaintiff’s assertion, his PIP’s criteria were not
subjective, but rather required the supervisor to judge the employee’s work product based on
objective standards in order to ensure that the employee was doing his job properly. Plaintiff was
not doing his job properly, which is why defendant terminated him from the federal service.
(Deutermann Dep. Ex. 2.)
18
Plaintiff also argues that evidence of the subjectivity of his PIP is demonstrated by the
fact that the requirements he was made to undergo did not exist prior to his PIP nor did they exist
after it. (Bennett Decl. ¶ 14; Bennett Dep. Ex. A at 79 (alleging that the Systemic Discrimination
Project was invented to weed him and Ms. Harris out because “there had never been [such] a
project before” and “the project was never done again.”).) However, the plaintiff in Forman v.
Small made a similar argument concerning a condition of his desired promotion to complete
“another major scholarly work” even though this “supposedly critical requirement vanished in
later years . . . and was not generally a requirement for promotion,” and our Circuit found this to
be insufficient evidence to show pretext. F.3d 285, 293 (D.C. Cir. 2001). In addition, as
discussed above, it is not unheard of that an employer would subject an employee during a
disciplinary period such as a PIP to heightened standards of performance, as an employee during
a PIP has already shown his performance to be deficient and the employer has an interest in
ascertaining whether the employee can perform his job in an adequate manner.
Also, plaintiff states that there is no indication how or why the 60% production
requirement properly measured the quantity of work product produced by him during the PIP
since Ms. Deutermann admitted that one case evaluation in the Project “could take as little as a
day” or “could take a week,” depending on the size and organization of the case file.
(Deutermann Dep. 49:19-50:7.) This is not an attack on the subjectivity of the requirement,
however, since 60% is obviously an objective number, but rather is an assertion of arbitrariness,
which as discussed above is an ineffective argument. Forman, 271 F.3d at 291 (stating that
whether an employee was treated fairly is irrelevant). In addition, as defendant points out,
plaintiff has offered no evidence that his colleagues received better organized files or received
more time to complete them. (Def.’s Reply [52] at 3.)
19
Finally, plaintiff makes much of his contention that his analysis of case files during the
PIP “was not truly measurable” since he claims that, outside of the PIP, two compliance officers
were assigned to review the same case file in “in recognition of the fact that … responses could
differ from one another”, whereas he contends that he was solely responsible for his case file
analysis during the PIP period. (Pl.’s Opp’n [47] at 11-12, 15.) Relatedly, plaintiff contends that
“in the normal course of OFCCP’s business outside the PIP process, management assigned
compliance officers in teams to review case files.” (Id. at 15.) As defendant points out, however,
both of these contentions are misstatements of the record, as they are both based on deposition
testimony of Ms. Deutermann that was referring to the development and design stages of the
Systemic Discrimination Project that took place in February 2004, rather than when it was
actually implemented by compliance officers. (Def.’s Reply [52] at 15-16; Deutermann Dep. at
76:8-79:6.) Plaintiff himself admitted that the Project went through design stages in which
brainstorming sessions often attended by staff were conducted, and even cited to the same
deposition exhibit (Exhibit 6) that Ms. Deutermann referred to as being from the design state of
the Project. (Pl’s Opp’n [47] at 9.) To further illustrate this, when Ms. Deutermann was asked in
her deposition whether this dual review is how the Project proceeded, she testified “No, I believe
that the project proceeded with individuals looking at case files on their own.” (Deutermann Dep.
at 76:8-79:6.)
All of the preceding analysis of this section has demonstrated the unlikelihood that a
reasonable jury could find the standards and procedures of plaintiff’s PIP to be subjective and
thereby a pretext for discrimination; however, even if a jury did think that the PIP criteria was
subjective, this is not fatal to granting defendant’s motion. Our Court of Appeals has
acknowledged that an employer’s strong reliance on subjective criteria may mask discrimination,
20
but it has also stated that “employers may of course take subjective considerations into account
in their employment decisions.” Aka, 156 F.3d at 1298. Also, multiple courts have recognized
that where “reliance on [subjective factors] is modest, and the employer has other, well-founded
reasons for the employment decision, summary judgment for the defendant may be appropriate.”
Id.; see Gonzales v. Holder, 656 F. Supp. 2d 141, 147 (D.D.C. 2009) (“A subjective reason can
be legally sufficient, legitimate and non-discriminatory if the defendant articulates a clear and
reasonably specific factual basis on which it based its subjective opinion.”). As previously
discussed, defendant produced in plaintiff’s Proposal to Remove, as well as the decision on that
proposal, a legitimate and non-discriminatory reason for terminating plaintiff (which plaintiff has
not disputed), so even if a reasonable jury thought that some of the PIP criteria were subjective,
this would not require a denial of defendant’s motion.
C. Discriminatory history of OFCCP and management
In addition to direct discriminatory action by an employer, evidence of discriminatory
statements or attitudes on the part of an employer can demonstrate that the employer made an
adverse employment decision for a discriminatory reason. Montgomery v. Chao, 546 F.3d 703,
708 (D.C. Cir. 2008). Plaintiff here asserts that in practice the “OFCCP’s affirmative action
program is designed to protect minorities and women” and does not normally benefit non-
minority Caucasian males. (Pl.’s Opp’n [47] at 1; see Bennett Decl. ¶¶ 4, 6.) Plaintiff notes that
he was the oldest employee at OFCCP when he was terminated, he was one of the few OFCCP
Caucasian male employees, and he was the only professional OFCCP employee terminated for
cause in the last 15 years. (Bennett Decl. ¶¶ 6, 18; Plaintiff’s Cplt. [1] ¶ 29.) However, “a
plaintiff’s mere speculations are ‘insufficient to create a genuine issue of material fact regarding
[an employer’s] articulated reasons for [its decisions] and avoid summary judgment’” Brown v.
21
Brody, 199 F.3d 446, 459 (D.C. Cir. 2009) (quoting Branson v. Price River Coal Co., 853 F.2d
768, 772 (10th Cir. 1988); Fields v. Johnson, 520 F. Supp. 2d 101, 105 (D.D.C. 2007) (stating
that self-serving testimony does not create genuine issues of material fact). In addition, in order
to avoid summary judgment, plaintiff must produce evidence that rebuts the legitimate non-
discriminatory reason defendant asserts as the basis for plaintiff’s removal. Marcelus v. CCA of
Tenn., Inc., 691 F. Supp. 2d 1, 19 (D.D.C. 2010). As defendant points out, plaintiff is unable to
meet this burden because his self-serving assertions about the OFCCP’s environment are “made
without any statistical or other reliable evidentiary support, and cannot be reconciled with the
fact that Plaintiff’s own supervisors were among this alleged disfavored group.” (Def.’s Reply
[52] at 3.) Accordingly, the Court will now address in turn the evidence (other than plaintiff’s
self-serving statements) that plaintiff offers to support this supposed discriminatory attitude on
the part of OFCCP.
First, plaintiff offers the affidavit of Linda Copening, plaintiff’s former union
representative and co-worker, which stated that OFCCP managers Harold Busch and Joseph
Jackson encouraged her to push plaintiff and Ms. Harris into retirement. (Copening ROI Aff. at
3; Copening Supp. ROI Aff. at 2-3.) These managers supposedly told Ms. Copening that the
pressure “to force Ms. Harris and Mr. Bennett into retirement” was coming from the OFCCP
“front office.” (Copening Supp. ROI Aff. at 2.) Mr. Jackson told Ms. Copening that he had been
ordered to place Ms. Harris on a PIP by his supervisor Ms. Dalzell-Finger and that when he was
reluctant to do so he was placed on a PIP himself. (Id.; accord Fernandez ROI Aff. ¶ 7.) As
defendant points out, however, plaintiff acknowledges that he lacks any evidence of age-based
animus on the part of the decisionmaker Ms. Deutermann, who was in her mid-60’s and only a
22
few years younger than plaintiff when she made the decision to terminate him.5 (Def.’s Reply
[52] at 22; Deutermann Decl. ¶ 19.) This is important because our Circuit has found that the
relevant question is whether the actual decisionmaker rather than another employee harbored
discriminatory animus against the aggrieved employee. See Holbrook v. Reno, 196 F.3d 255,
260-61 (D.C. Cir. 1999) (alleged bias of subordinate cannot be considered as evidence of
discrimination where “the record contains no evidence” that the subordinate participated in the
decision at issue). Ms. Deutermann stated that she made the decision to remove plaintiff on her
own and without any pressure or influence from other managers or personnel. (Deutermann
Decl. ¶ 17.) In addition, even if it is true that the “front office” of the OFCCP wanted plaintiff
and Mr. Bennett gone, this is not necessarily a result of age-based discrimination against them
but could be a result of their possible lack of technical skills. (See Bennett Dep. Ex. A at 79
(recounting plaintiff’s assertion that a senior manager of the OFCCP stated at an all staff meeting
that “the system was getting very technical, and the people who couldn’t do the new technical
thing … were going to be weeded out.”; Bennett Decl. Att. C at B1-2 (EEO Counselor’s Report
stating that “Ms. Deutermann said that they had developed a new matrix for ‘Quality Analysis
and Evaluation of Field Compliance Activities’ and that [plaintiff] was not able to grasp the
concept.”).)
Furthermore, as defendant points out, the actual remarks by these OFCCP managers are
not identified in the affidavit and there is not any information concerning when these remarks
were made, so this Court has no way to know the context in which these alleged remarks were
made or what was actually said since plaintiff offers no evidence in this vein. See, e.g., Thomas
v. Ghandi, 650 F. Supp. 2d 35, 40 (D.D.C. 2009) (stating that the court must not look at the use
5
Defendant points out that Mr. Bennett arguably “conceded in his deposition that he had no basis to believe that Ms.
Deutermann harbored any discriminatory animus toward him.” (Def.’s Reply [52] at 8; Bennett Deposition 92-93.)
23
of the term “retire” in isolation but rather in the context in which the statement was made to
determine if it evidences age-based animus, and finding the context to negate such an inference),
aff’d, 2010 WL 2203177 (D.C. Cir. May 24, 2010) (affirming the District Court’s decision,
including the focus on the context in which the alleged statement was made); Elam v. D.C. Fire
& EMS Dept., 2005 WL 1903557 (D.D.C. 2005) (finding that rumors without substantiation
regarding their substance, source, or time frame failed to raise an inference of discrimination);
Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992) (stating that affidavits containing
“rumors, conclusory allegations and subjective beliefs” are insufficient to establish a claim of
discrimination as a matter of law). Accordingly, these unsubstantiated rumors regarding the
alleged discriminatory attitude of the “front office” of the OFCCP do not help plaintiff’s case.
Second, another OFCCP employee, Susan Bowmaster, who was 61 years old and had 36
years of government service at the time, testified that she did not receive assignments
commensurate with her knowledge or experience, which she attributed to efforts by senior
management to remove older employees because of “rumors circulating throughout the
Operations Division” to that effect. (Bowmaster ROI Aff. ¶ 7.) This is clearly a self-serving
statement which is without substantiation and does not create an issue of material fact. See e.g.
Sloan v. Urban Title Services, Inc., 689 F. Supp. 2d 94, 122 n. 6 (D.D.C. 2010)
(“[U]nsubstantiated beliefs amount to nothing more than hearsay, self-serving statements and
speculation, and are insufficient as such to defeat summary judgment.”); Boles v. Dansdill, 361
Fed. Appx. 15, 18 (10th Cir. 2010) (Conclusory and self-serving affidavits are insufficient to
create a genuine issue of material fact.). In addition, this evidence tends to negate a finding of
age-based discrimination on defendant’s part as plaintiff has not suggested or shown that this
senior employee was forced out (as he supposedly was) by defendant. So, like the testimony of
24
Ms. Copening, these unsubstantiated rumors and Ms. Bowmaster’s self-serving statement do
little to help plaintiff’s case.
Third, another OFCCP employee, Armando Fernandez, testified that he was pressured to
retire by Mr. Busch, and this was believed by another employee Ash Cambetta to be because Mr.
Fernandez was the only Hispanic employee in the division. (Fernandez ROI Aff. ¶ 7; Cambetta
ROI Aff. at 3.) However, Mr. Fernandez also testified that Mr. Busch told him that he should
retire because “he complained too much” rather than for a discriminatory reason. (Fernandez
ROI Aff. ¶ 7.) In addition, this is merely one employee’s opinion about another employee’s
motivations for doing something and as such is pure speculation which surely does not rise to the
level of proof a reasonably jury would need to find a department-wide discriminatory attitude.
See Mitchell, 964 F.2d at 584-85; Sloan, 689 F. Supp. 2d at 122 n. 6. Also, even if this Court
were to believe that Mr. Busch did pressure Mr. Fernandez to retire, plaintiff has offered no
evidence suggesting, much less proving, that this was on account of his race. Furthermore, Mr.
Busch was not a decisionmaker in either plaintiff’s or Ms. Harris’ case, and therefore his alleged
discriminatory bias even if true is irrelevant to this case. Holbrook, 196 F.3d at 260-61. Mr.
Fernandez also testified that it was his opinion that plaintiff’s placement on the PIP was
unwarranted. This opinion is without any factual basis, however, and as defendant points out,
Mr. Fernandez himself admitted that he was not familiar with any of plaintiff’s work. (Def.’s
Reply [52] at 24; Fernandez ROI Aff. ¶ 7.) Thus, this speculative testimony by Mr. Fernandez
does not help plaintiff’s case.
Fourth, Ash Cambetta, a long time co-worker of plaintiff, testified under oath in his
affidavit that it “was widely rumored that Branch Chiefs were under pressure to ‘get rid’” of
plaintiff and Ms. Harris because they each had 40+ years of service. (Cambetta ROI Aff. ¶ 9.)
25
The same rumor analysis discussed above applies, and moreover, Mr. Cambetta admitted that
this rumor “cannot be proved.” Id; Thomas, 650 F. Supp. 2d at 40 (rejecting as evidence of
discrimination a third party statement alleging the existence of rumors of age-based animus). In
addition, Mr. Cambetta stated in his affidavit that the “Division of Program Operations had a
history of nurturing a vicious environment of racial and gender polarization. Managers in the
Division built their lucrative careers on this. As a result, there was an inhospitable environment
towards employees who were not African-American.” Id. This statement has not been backed up
by plaintiff with any real evidence, and as such it is no more effective in proving a
discriminatory attitude on defendant’s part than the previously discussed rumors that plaintiff
alleges existed.
The only evidence besides these rumors that plaintiff offers to prove age-based
discrimination against him is the supposedly disparate treatment of himself and Ms. Harris, and
defendant has aptly shown that a reasonable jury would conclude that plaintiff and Ms. Harris
were not similarly situated, and even if a jury concluded that they were similarly situated,
plaintiff’s treatment in isolation cannot be enough to prove a case of discrimination. See supra
Part III.B.2.A; Marcelus v. CCA of Tenn., Inc., 691 F. Supp. 2d 1, 19 (D.D.C. 2010) (“One
instance of disparate treatment hardly constitutes a pattern that would justify an inference of
intentional discrimination[.]”). In short, none of this supposed evidence of a discriminatory
attitude on the part of the OFCCP is competent to rebut the legitimate non-discriminatory reason
for plaintiff’s termination that defendant has offered.
D. Evidence by plaintiff of positive evaluations by employer
Our Court of Appeals has found in at least two cases that employment discrimination
plaintiffs had established enough evidence of pretext by vigorously disputing the employer’s
26
stated reasons for terminating the aggrieved employee. George v. Leavitt, 407 F.3d 405, 413-14
(D.C. Cir. 2005); Desmond v. Mukasey, 530 F.3d 944, 963-64 (D.C. Cir. 2008). In both of these
cases the defining features were positive evaluations of the plaintiff’s performance as well as
testimony of co-workers that tended to shed doubt on the employer’s statement about the
plaintiff’s poor performance. See Hussain v. Gutierrez, 593 F. Supp. 2d 1, 10 (D.D.C. 2008).
Both of these features are present in this case, but this Court believes they are insufficient to
prove pretext.
First, plaintiff’s union representative Ms. Copening stated in her affidavit that:
“up until the time [plaintiff] was put on a PIP, he had received good evaluations.
He had no reason to believe there were any deficiencies in his work. Management
did not, orally or in writing, counsel him regarding his performance. He was a
long tenured employee who had contributed much to the program over the years.”
(Copening ROI. Aff. at 2-3.) Ms. Copening also stated that plaintiff “had received Fully
Successful ratings for all periods leading up to the issuance of the PIP.” (Copening Supp. ROI
Aff. at 2.) Second, Harold Busch, the Director of DPO that was responsible for the Systemic
Discrimination Project, expressed through an email the thanks of the OFCCP Deputy Director
William Doyle to staff members for work on the project. Plaintiff was included in this email
which praised the staff’s “great work” and the “quality of the work” on the project.6
(Deutermann Dep. Ex. 8.) Plaintiff suggests implicitly that both of these shed doubt on the
legitimacy of the reason that defendant gave for terminating plaintiff (Pl.’s Opp’n [47] at 9-10.)
However, there are several flaws in this assertion.
To start, the plaintiffs in the abovementioned Leavitt and Mukasey cases vigorously
disputed the validity of the reasons cited by the employer for their dismissals (i.e. that their
6
It is interesting that plaintiff alleges that Mr. Busch was one of the individuals in management who likely
discriminated against him (Bennett Dep. 66:18-77:16), when plaintiff also cites this email by Mr. Busch as basically
the sole piece of documentation by a superior to support the idea that he was a good worker.
27
performance was not as deficient as the employer claimed), whereas plaintiff here never disputed
the merits of the Department’s legitimate non-discriminatory reason for terminating him, namely
that he failed his PIP. (Leavitt, 407 F.3d at 413-14; Mukasey, 530 F.3d at 963-64; Deutermann
Decl. ¶ 3.) Rather, as discussed earlier, the plaintiff here faulted the PIP itself as being subjective
and arbitrary. Supra Part III.B.2.A. So, while the plaintiffs in Leavitt and Mukasey were able to
survive summary judgment because their refutations created a genuine issue of material fact
regarding the reasons cited by the employers for their dismissal, plaintiff in this case did not
because he failed to rebut the assertions made by the Department that his performance was in
fact deficient. (Deutermann Decl. ¶¶ 5-6.) In addition, although Ms. Copening might be correct
in her statement that plaintiff did not receive poor evaluations leading up to the PIP period, it is
also true that the Systemic Discrimination Project was a new project that plaintiff could
apparently not handle and it is undisputed that he was inept at completing his work associated
with the Project. (Deutermann Dep. Ex. 12.) Finally, plaintiff’s supervisor testified in her
deposition that, in the months prior to placing plaintiff on the PIP, his performance seemed to be
deteriorating. (Def.’s Motion [35-1] at 14.) So, while plaintiff may have been a stellar employee
during the years prior to 2004, it is undisputed that his performance deteriorated and became
unacceptable, and also undisputed that plaintiff was given opportunities to improve but did not
do so. (Deutermann Dep. Ex. 12 at Att. 7.)
Furthermore, even taking the email from Mr. Busch at face value, it was sent on June 27,
2004, praised work that was mostly completed prior to the PIP period (which lasted from May 7,
2004 through November 24, 2004) and does not involve plaintiff’s performance during the entire
PIP on which the decision to remove plaintiff was based. (Deutermann Dep. Ex. 8; Deutermann
Decl. ¶ 2.) In addition, the email was not directed specifically to plaintiff, but was seemingly sent
28
to all of the employees in the office who worked on the Systemic Discrimination Project.
(Deutermann Dep. Ex. 8.) Also, the email came from a senior manager who was likely not
involved with the day to day work product of the recipients of the email, which is important
because the record shows that the work product of compliance officers like plaintiff often went
through substantial revision and editing by supervisors before it was passed along to upper
management. (See Bennett Decl. ¶ 13.) In other words, this praise for the “quality of the work”
of the email recipients concerns work product that went through substantial supervisory revision
before it made its way to upper management, and so the impact that plaintiff gives the email
could very well be overstated.
All in all, based on the evidence and the case law, no reasonable jury could find pretext
based on plaintiff’s termination despite the possibility that he was an acceptable worker prior to
the time leading up to the PIP period.
E. Plaintiff’s faulting of Ms. Deutermann
Plaintiff has made numerous arguments to the effect that Ms. Deutermann must have
discriminated against him because she did not review the specific case files that were assigned to
plaintiff during the PIP period on which plaintiff’s supervisor based the removal decision. (Pl.’s
Opp’n [47] at 3, 13-15.) In particular, plaintiff argues that Ms. Deutermann’s statement that “she
did not review the specific case files” and the fact that she did not remember when asked in her
deposition how much time she spent reviewing plaintiff’s work in any of his cases were both
evidence that she arbitrarily terminated him as a result of discrimination rather than performance
deficiencies. (Deutermann Dep. at 51:6-53:16; Pl.’s Opp’n [47] at 3, 14.) Plaintiff overstates its
case for a number of reasons.
29
First, plaintiff’s citation to the answer Ms. Deutermann gave in her deposition that she
“did not review the specific case files [of plaintiff during the PIP]” is misleading because the
question to which this answer was given asked Ms. Deutermann “[d]o you recall the
documentation that was in the Dow file.” (Deutermann Dep. 53:14-16; Pl.’s Opp’n [47] at 3, 14.)
This Dow file was only one of several files that plaintiff was responsible for during the PIP
period, Ms. Deutermann’s deposition testimony refers to other case files of plaintiff’s that she
did review, and thus Ms. Deutermann’s lack of review of this one Dow file is far from the utter
lack of oversight that plaintiff suggests took place. (Pl.’s Opp’n [47] at 3, 14; Deutermann Dep.
55:16-56:15, Ex. 2 at 000000295. Also, regarding the Dow file and contrary to plaintiff’s
insinuation, Ms. Deutermann did review “the submissions of [plaintiff’s] work for the Dow” file
and found that plaintiff gave “inconsistent responses which would result in incorrect data being
recorded for analysis.” (Deutermann Dep. Ex. 2 at Bennett 000000294.)
In addition, defendant pointed out Ms. Deutermann’s testimony stating that she examined
the examples of plaintiff’s work that were attached to the Proposal to Remove when making her
decision and determined that they substantiated plaintiff’s supervisor’s assertions of plaintiff’s
poor performance. (Def.’s Reply [52] at 17; Deutermann Decl. ¶ 5; Deutermann Decl. Ex. 1 at
Bennett 00293-00294.) Specifically, some of these attachments included work by plaintiff that
was internally inconsistent, contained short-hand responses by plaintiff when he knew he was
supposed to write in full sentences (which should have been “second nature” to plaintiff as a
Senior Compliance Officer), and several other deficiencies in plaintiff’s work product. (Def.’s
Reply [52] at 16-17; Deutermann Decl. Ex. 2 at 00013-00014, 00033-00034, 00109; Def.’s Mot.
[35] Ex. B at 67.)
30
Furthermore, as discussed earlier, Ms. Deutermann believed that her role as the deciding
official was limited to reviewing the Proposal to Remove as a stand alone document, and
plaintiff has not offered evidence suggesting that this understanding was incorrect. (Deutermann.
Decl. ¶ 3; supra Part III.B.2.A.) So, contrary to plaintiff’s assertion that Ms. Deutermann had no
knowledge of plaintiff’s work, Ms. Deutermann reviewed plaintiff’s work that was attached to
the Proposal to Remove and was able to independently substantiate plaintiff’s supervisor’s
findings present in the Proposal to Remove that described plaintiff’s numerous performance
deficiencies. (Deutermann Dep. Ex. 12.)
Also, regarding the fact that Ms. Deutermann didn’t remember how much time she spent
reviewing plaintiff’s work, this deposition took place on September 22, 2009, while the events in
question took place in 2004 and 2005, a full four year difference, so it isn’t unheard of that a
person would not remember these details after four years. (Deutermann Dep. 1:13; Bennett Decl.
¶¶ 3, 8, 14, 17, 19, 21, 22.) Furthermore, as indicated above, plaintiff has shown that Ms.
Deutermann did review plaintiff’s work product as an incident to her evaluation of the Proposal
to Remove, and plaintiff has not established any rule or regulation mandating a specific amount
of time Ms. Deutermann was required to review plaintiff’s work product.
In addition, plaintiff complained that Ms. Deutermann erred when she did not terminate
Ms. Harris or place her on another PIP when she was within her authority to do so. (Pl.’s Opp’n
[47] at 17.) As defendant pointed out, however, Ms. Deutermann has stated that it was her
understanding that her only role in the process was to make a determination on the proposed
removal of Ms. Harris, and Ms. Deutermann’s undisputed testimony was that it was up to Ms.
Harris’ immediate supervisor to take any further action (such as placing her on another PIP)
31
following the decision on the Proposal to Remove. (Def.’s Reply [52] at 18; Deutermann Dep. at
101:10-102:9.)
Finally, regarding the citation to the narrative portion of the Harris Proposal to Remove
in which Ms. Harris’ supervisor asserted that “none of the work [Ms. Harris] submitted was
acceptable on the first submission,” the same reasoning applies as was submitted earlier in this
opinion in the “similarly situated” section, namely that the supervisor’s documentary support
was inadequate to support this assertion. (Supra Part III.B.2.A.; Def.’s Reply [52] at 18-19; Pl’s
Opp’n [47] at 26.). In particular, as defendant notes, of the 11 case files that Ms. Harris worked
on during the PIP period, her supervisor only referred to 4 of them in the Proposal to Remove as
being problematic, so the documentary support is inadequate to support the “none of the work …
was acceptable” assertion. (Def.’s Reply [52] at 19; Deutermann Decl. ¶ 11, Ex. 7.) In addition,
as defendant points out, equally misleading is plaintiff’s reference to Ms. Deutermann’s
statements that “she had no basis for failing to discharge Ms. Harris” and that she had no “reason
to doubt” assertions made by Ms. Harris’ supervisor about Ms. Harris’ performance. (Def.’s
Reply [52] at 20; Deutermann Dep. at 94:15-99:8; Deutermann Decl. ¶ 16.) As previously
discussed, although Ms. Deutermann had no reason to doubt the supervisor’s assertions, it was
Ms. Deutermann’s understanding that she was to review the Proposal to Remove as a stand alone
document that must be substantiated and documented with evidence, and in the case of Ms.
Harris as contrasted with plaintiff the claims in the Proposal to Remove were not properly
substantiated and were largely based on work that was completed prior to the initiation of the PIP
rather than during the PIP period. (Deutermann Decl. ¶¶ 3, 10, 15, 16; supra Part III.B.2.A.)
Thus, contrary to plaintiff’s assertion that Ms. Deutermann said she had no basis for failing to
discharge Ms. Harris, Ms. Deutermann really said that there was inadequate documentation for
32
her to do so. (Deutermann Decl. ¶¶ 9-15, Exs. 6-7; Deutermann Dep. at 107:3-10.) Accordingly,
plaintiff’s faulting of Ms. Deutermann in this decisionmaker role is misplaced and does not
prove pretext on the part of defendant Department.
3. Plaintiff Cannot Prevail on his ADEA Claim
As stated earlier, the Supreme Court has held that “[a] plaintiff bringing a disparate-
treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age
was the ‘but-for’ cause of the challenged adverse employment action.” Gross v. FBL Fin. Servs.,
Inc., 129 S. Ct. 2343, 2352 (2009). It is not enough that age was one motivating factor in an
adverse employment action; rather, it must be the case that the adverse action would not have
occurred in the absence of age as a consideration. See id. at 2350. Plaintiff cannot prevail under
this exacting standard because defendant has demonstrated that plaintiff was terminated as a
result of his poor performance during the PIP period, and plaintiff has not disputed this poor
performance. (Def.’s Reply [52] at 12; Deutermann Decl. ¶¶ 5- 6.) In addition, as defendant
points out, plaintiff’s comparison of himself to Ms. Harris does not help plaintiff’s case of age
discrimination since Ms. Harris was only three years younger than plaintiff but was not
terminated even though she also failed her PIP. (Def.’s Reply [52] at 22; Def.’s Mot. for Summ.
J. [35] at 18.) Furthermore, plaintiff has not proven that Ms. Deutermann as the decisionmaker
harbored any discriminatory animus against him, and plaintiff has not successfully refuted the
statement Ms. Deutermann made in her deposition regarding her insulation from other managers
in the Department and that she made the decision to remove plaintiff on her own, without any
assistance or pressure from anyone else. (Deutermann Decl. ¶¶ 17-19.) Accordingly, since
plaintiff’s poor performance was certainly a factor in defendant’s decision to terminate him, no
reasonable jury could conclude that age was the “but for” cause of that decision.
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* * *
In sum, the Court concludes that defendant met its burden in proferring a legitimate non-
discriminatory reason for its decision to terminate plaintiff’s employment. In addition, the Court
concludes that plaintiff has failed to prove that the Department’s non-discriminatory justification
for his termination was pretext for unlawful discrimination. Accordingly, the Court will grant the
Department’s motion for summary judgment on plaintiff’s Title VII and ADEA claims.
V. CONCLUSION
For the foregoing reasons, defendant Department’s Motion for Summary Judgment [35]
shall be GRANTED.
A separate order shall issue this date.
Date
July 22, 2010.
_________/s/_____________
ROYCE C. LAMBERTH
Chief Judge
United States District Court
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