Paulk v. Architect of the Capitol , 79 F. Supp. 3d 82 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JERRY W. PAULK, ;
Plaintiff, ;
v. 3 Civil Case No. 12—1164 (RJL)
)
ARCHITECT OF THE CAPITOL, ; I L E
Defendant. )1 FEB 0 3 2015
MEMORKNDUM OPINION mam, Us. 0.5mm & Bankruptcy
Courts for the District of Columbla
(February 3 , 2015) [Dkt. ##18, 33]
Plaintiff Jerry W. Paulk (“plaintiff‘ or “ Paulk”) commenced this action against
the Architect of the Capitol (“defendant” or “‘AOC") on July 17, 2012, seeking damages
for alleged Violations of the Congressional Accountability Act of 1995 (“CAA”), 2
U.S.C. §§ 1301 et seq. See Compl. f] 2. [Dkt. #1]. Now before the Court is defendant’s
Motion for Summary Judgment. See Def.’s Mot. for Summ. J. (“Def.’s Mot.”) [Dkt.
#18]. Upon consideration of the parties‘ pleadings, the entire record in this case, and the
relevant law, the Court GRANTS defendant’s Motion for Summary Judgment and
dismisses this action in its entirety.‘
BACKGROUND
Plaintiffis an electrician who was employed by defendant AOC as a night shift
temporary employee in the House Office Buildings (“HOB”) for approximately thirteen
1 Also pending is plaintiff’s motion for leave to file a surreply [Dkt. #33], The Court GRANTS
plaintiff‘s motion and has considered plaintiff’s surreply and defendant’s response thereto [Dkt.
#35] in its disposition of this case.
years. See Compl. W 8-9. During his tenure, plaintiff worked on a number of
Emergency Lighting Projects in the Longworth and Rayburn House Office buildings.
See Def.’s Mot. Ex. 3 at 28:16—29:2 [Dkt. #18-3]. Plaintiff alleges that in August 2010,
David Smith (“Smith”) and Kevin Banks (“Banks”)—both electrical division
supervisors—ordered plaintiff and other night shift electricians to work in areas and with
materials containing asbestos. Compl. $1 10. Although plaintiff and the other electricians
objected to handling asbestos without proper safety equipment, they were warned by their
supervisors that “there would be consequences for failing to do as instructed.” Compl. ll
10. At the request of plaintiff’s work partner, Richard Hutson, AOC’s Inspector General
(“OIG”) launched an investigation into whether electricians were instructed to disturb
asbestos-containing materials without proper safety precautions. Pl.’s Opp’n to Summ. J.
(“PL’s Opp’n) at 3 [Dkt. #23]. The OIG interviewed plaintiff on April 22, 2011. Compl.
11 13. Plaintiff’s employment was terminated in June 2011. Compl. 11 15; Def.’s Stmt.
Material Facts Not In Dispute (“Def’s SMF”) 1t 10 [Dkt. #18-19]. Believing that he was
terminated because of his OIG testimony, plaintiff sought counseling with the Office of
Compliance (“OCC”) and was reinstated to his temporary position in November 2011.
Def.’s SMF 111110—11.
Meanwhile, between 2010 and 201 1. in the wake of budgetary restrictions, HOB
sought to re-structure its night shift electrician staff by creating three permanent
electrician positions. See Def.’s Mot. Ex. 14 (“Riley Decl.”) W 8 [Dkt. #18-16]; Def.’s
Mot. at 28. On November 29, 201 1, HOB published a Vacancy Announcement seeking
to fill these three vacancies from a pool of ADC employees. See Def.’s Mot. Ex. 8a
2
akin to those of an installer than an electrician, see Def.’s Mot. Ex. 6 at 2152-13 [Dkt.
#18-6]. Adeyemi testified to global concerns about plaintiff’s interview performance and
qualifications, and, noted in particular plaintiffs apparent confusion about specific wiring
schematics. See Adeyemi Dep. at 15021—151z21 (“There was one where [candidates]
were wiring switching modules for emergency lights and [plaintiff] really didn’t
understand the schematic on it. so it had to be explained to him how it’s wired up so that
it would work in normal position and in emergency”). The panelists’ inability to recall
their precise reasoning speaks less to an effort to mask an unlawful motive and more to
sloppiness in the interview process and the attrition of memory. Accordingly, the
panelists’ inability, when deposed months after their decision, to cite to a uniform reason
for plaintiff’s non-selection, is insufficient to show pretext in light of the clear logic of
their choice. See Grosdidier v. Broad. Bd. OfGovemors, 709 F.3d 19, 26 (DC. Cir.
2013) (finding no pretext where the panelists “were unable to clearly articulate the
factors” supporting their decision).
Plaintiff also argues that the HOB panelists engaged in past discriminatory
conduct that is probative of their intent here. This argument is a red herring. Plaintiff
relies on Nusky v. Hochberg, 723 F. Supp. 2d 229 (BBC. 2010) for the proposition that
“evidence of an employer’s past discriminatory or retaliatory behavior toward other
employees . . . [may] be relevant to whether an employer discriminated or retaliated
against a plaintiff.” Id. at 233. However, as that case also points out, such evidence is
whether Murphy was ultimately responsible for the decision, his testimony is probative of his
state of mind as the highest—ranking member of the panel.
1]
“neitherper se admissible nor per se inadmissible." ld. In determining whether it is
more probative than prejudicial, Courts must assess “how closely related the evidence is
to the plaintiff s circumstances and theory of the case,“ including the proximity in time to
the events at issue. Id. (quoting Sprint v. Mendelsohn, 552 US. 379, 387-88 (2008)).
Plaintiff here claims that Adeyemi’s hiring of "6 temporary electricians to work on the
Emergency Lighting Project in 2010," all of whom were African-American, is “probative
of the Defendant’s state of mind when it passed him over for the permanent position on
the night shift.” Pl.’s Opp’n at 17-18. Even putting aside the fact that this hiring
occurred at least a year before the events at issue in this case. the circumstances are such
that a reasonable jury could not conclude that discriminatory animus infected the panel’s
selection here. First, there is no indication that any of the applicants in the prior instance
were Caucasian. Second, even assuming. arguendo, that some of the applicants were
Caucasian, Adeyemi testified that he did not conduct any in—person interviews in 2010,
but rather hired the electricians on the basis of their resumes and phone interviews. See
Def’s Reply to Pl.’s Opp’n to Def‘s Mot. for Summ. J. (“Def’s Reply”) Ex. 4 at 59:17-
60:13 [Dkt. #31-4] (“Q: Did you talk to any Caucasian people that you can tell? A: I
couldn’t tell over the phone ifthey were Caucasian or not. Q: Did you meet any ofthe
temporary electricians before you hired them face—to-face? A: No”). In any event, these
past actions have no bearing on the case at bar, given that here, Adeyemi selected a
higher- Caucasian electrician (Gallagher) and rejected an African-American electrician
(Jones). As the Fourth Circuit sagely observed. “[f]rom the standpoint of a putative
discriminator, it hardly makes sense to hire workers from a group one dislikes.” See
12
Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (citation and internal quotation marks
omitted).
Undaunted by the lack of discriminatory evidence. plaintiff attempts to rely on
inference to create a genuine issue of material fact. Plaintiff argues that he is entitled to
an adverse inference based on the destruction ofccrtain recordsrspecifically, the
interview scoring matrix. the interview answer sheet, and the panel’s justification
memorandum. See Pl.’s Opp’n at 7, 30-33. This Circuit has recognized negative
evidentiary inferences arising from the negligent spoliation ofpotentially relevant. See,
e.g., Gerlich v. US. Dep ’t ofJuszz'ce, 711 F.3d 161, 171 (DC. Cir. 2013) (finding a duty
to preserve where future litigation was “reasonably foreseeable”); T alavera v. Shah, 638
F.3d 303, 311-12 (DC. Cir. 2011) (allowing an adverse inference when negligent
document destruction violated an EEOC regulation).
Here, defendants destroyed documents pertinent to the selection process despite a
two-year preservation policy. See Pl.’s Opp’n Ex. 44 at 25 § 26(A) [Dkt. #23-44]. The
existence of some evidence regarding the selection process, including the Vacancy
Announcement, HR’s referral list, and the candidates’ job applications, militates in favor
oflimiting the inference. but not in denying the inference altogether.9 Under the
circumstances, plaintiff is entitled to a “permissive inference bounded by constraints of
reason.” See Grosdidz‘er. 709 F.3d at 28 (allowing a weak adverse inference where other
9 T alavera, which plaintiff relies upon to support an expansive inference, is inapposite. Unlike in
Talavera, where the non—discriminatory reason for the plaintiff s non-selection turned solely on
her interview performance, plaintiff 5 interview here did not play the same pivotal role. See 638
F.3d at 312 (allowing an adverse inference because of the dearth of other relevant evidence).
3
l)
evidence of the employer’s reasoning survived). Plaintiffs proposed inferences—that
the scoring matrix would have shown that he rcccived “equal or better scores” compared
to the selected candidates, that the defendants’ proffered justifications were
unsupportable and that the panelists intentionally deflated plaintiff‘s scores—are not
reasonable light of the existing evidence. See Pl.’s Opp’n at 32. An inference of the
magnitude plaintiff proposes would translate to directed verdict in his favor,
notwithstanding clear evidence that each of the selected candidates had more formal
training than plaintiff. A reasonable inference would instead be that the destroyed
documents contained some evidence that plaintiff performed well during his interview.
However, this inference alone is insufficient to create a genuine issue of material fact.
Other evidence, including the selectees’ credentials, the panel’s selection ofa Caucasian
male with comparatively better training. and the panelists’ sworn testimony that plaintiff
was underqualified. would not permit a reasonable finding that the destroyed notes would
have established pretext, let alone unlawful discrimination. See von Muhlenbrock v.
Billington, 579 F. Supp. 2d 39, 45 (D.D.C. 2008) (“[T]he destruction of evidence,
standing alone, is [not] enough to allow a party who has produced no evidence — or
utterly inadequate evidence- in support of a given claim to survive summary judgment.”
(alteration in original) (quoting Chappell-Jo/mson v. Hair, 574 F. Supp. 2d 87, 102
(D.D.C. 2008»). As such, plaintiff has not created a genuine issue of material fact that
defendant’s hiring decision was motivated by the specter of racial discrimination.
Plaintiff alleges, in the alternative. that his non-selection was due to unlawful
retaliation for two protected activities: (1) his participation in the April 2012 OIG safety
14
investigation and (2) his June 2011 OCC complaint challenging his dismissal. See
Compl. W 37-44. As discussed above. because defendant has adduced a legitimate, non-
discriminatory reason for plaintiff‘s non—selection, the issue before the Court is retaliation
vel non. See Jones, 557 F.3d at 678 (applying the Brady framework to Title VII
retaliation complaints). The crux of this Court’s inquiry is “whether the employee’s
evidence creates a material dispute on the ultimate issue of retaliation either directly by
[showing] that a [retaliatory] reason more likely motived the employer or indirectly by
showing that the employer‘s proffered explanation is unworthy of credence.” Id.
(quoting US. Postal Serv. Bd. ofGovernors v. Aikens, 460 US. 711, 716 (1983)). The
court reviews the categories of relevant evidencc——prima facie. pretext, and any other
evidence plaintiff adducesvto determine whether "separately or in combination” they
provide sufficient evidence of retaliation. See Waterhouse v. District of Columbia, 298
F.3d 989, 996 (DC. Cir. 2002).
Plaintiff here retreats to his prima facie case, claiming that a strong temporal
connection between his protected activities and his non—selection shows retaliation. See
Pl.’s Opp’n at 18-20. This misconstrues the law. To prove retaliation, a Title VII
plaintiff “must establish that his or her protected activity was a but—for cause of the
alleged adverse action by the employer.” Univ. of Tex. Sw. Med. v. Nassar, 133 S. Ct.
2517, 2534 (2013) (emphasis added). Under this standard, it is plainly insufficient for a
plaintiff to demonstrate that retaliatory animus was a cause of the adverse employment
action. The litmus test is whether “retaliatory animus was the cause.” Rattz'gan v.
Holder, 982 F. Supp. 2d 69. 81 (BBC. 2013) (emphasis in original); accord Warner v.
15
Vance—Cooks, 956 F. Supp. 2d 129, 151 (D.D.C. 2013) (applying “traditional principles
of but-for causation” to plaintiff's Title VII retaliation claim). Straining mightily to
show that his protected activity was the sole cause of his non-selection, plaintiff argues
that the six months between his participation in the 01G safety investigation and his non-
selection is clear evidence ofretaliation. See P1.’s Opp’n at 18-20. Even iftemporal
proximity were sufficient to prove causation. which it emphatically is not, 10 plaintiff‘s
protected activities are too remote in time from his non-selection to constitute definitive
proof of retaliation. While an adverse personnel action that occurs “shortly” after
protected activity may give rise to an inference ofcausation, Holcomb, 433 F.3d at 903,
action that transpires more than three or four months after protected activity are less
likely to create causal inferences, see Clark CM)». Sch. Dist. v. Breeden, 532 US. 268,
273-74 (2001) (per curiam) (citing with approval circuit cases finding three and four
months to be too temporally remote to establish causation). Here, plaintiff’s activities
took place in the spring of 201 1, approximately six months before his non-selection in
late December 201 1.11 Construed in a light most favorable to plaintiff, this at most shows
that retaliation could have been a motivating factor, but not the sole cause of his non-
selection. The more plausible cause ofplaintiff’s non-selection is his comparative lack
10 Before Nasser, courts relied on a “temporal proximity" analysis, and used the time span
between the adverse employment action and the protected activity to provide evidence of
retaliation. After Nasser, courts in this Circuit view temporal proximity as persuasive, but not
dispositive, evidence of retaliation. See US ex rel Schweizer v. 0ce N. Am, 956 F. Supp. 2d 1,
16 (D.D.C. 2013) (finding that temporal proximity was circumstantial evidence of retaliation).
H Plaintiff argues that there was a strong temporal proximity because plaintiff‘s non-selection
occurred three weeks after he was restored to his position in November 2011. See Pl.’s Opp’n at
18—20. However, the “protected activity” at issue here is plaintiffs OIG testimony, and his
complaint to the Office of Compliance, not the outcome of his OCC settlement.
l6
12
of credentials. For this reason, I find that the plaintiff has not provided sufficient
evidence for a reasonable jury to conclude that his non—selection was retaliatory.
II. Termination
Plaintiff Claims that his second adverse employment action, his termination in
April 2012, was likewise motivated by discriminatory and retaliatory animus. See
Compl. W 38, 42, 46. These claims fail regardless of whether they are cast in terms of
discrimination or retaliation. Defendant has offered a legitimate, nondiscriminatory
reason for plaintiffs termination: budgetary shortfalls. See Def.’s Mot. at 23— 29. Faced
with diminishing funds and fewer large scale projects, HOB terminated the entire night
shift staff, which included three African—American and four Caucasian electricians. See
Def.’s Mot. at 24-25. Citing to a purported $350,000 available to fund night shift
temporary electrician projects in early 2012. plaintiff claims that the temporary
electricians were eliminated “despite the availability of work and funding.” See Pl.’s
Opp’n at 41. Plaintiff does not make any showing, however, that this $350,000 was
sufficient to fund the salaries of the seven temporary night shift employees for any
significant amount of time. Nor does it undercut evidence in the record at in 201 1 and
12 Plaintiff‘s claims that HOB managers were aware ofhis participation in the investigation, and
Superintendent Weidemeyer’s testimony that they were "somewhat dismayed” by plaintiff s
reinstatement in November 201 1, does not overcome plaintiff” s comparatively weaker
credentials. See Pl.’s Opp‘n at 18. Nor do plaintiffs bald assertions that the HOB managers
made retaliatory threats against temporary electricians in other contexts create a genuine issue of
material fact. See Pl.’s Opp’n at 16. Plaintiffhas not shown how these vague and unsupported
allegations are relevant to the alleged retaliatory conduct in this case.
17
2012, “AOC’s budget was being reduced and managers were cutting staff.” Riley Decl. 1i
8.13
Plaintiff also argues that the Court should find discriminatory animus because
defendant “took no steps to protect or mitigate the damage suffered by [plaintiff] and the
other white electricians . . . while it assisted the black electricians” to obtain employment
in otherjurisdictions. See Pl.’s Opp’n at 43. Plaintiff does not offer a shred of evidence,
beyond conclusory assertions that two of the terminated African—Americans were later
employed by Adeyemi’s friend, to show that defendant affirmatively assisted some, but
not other, members of its temporary workforce. Plaintiffs claim is belied, moreover, by
the fact that one of the terminated African-American employees did not obtain
employment with the AOC after his termination. See Pl.‘s Opp’n at 43.
As such, plaintiffs retaliation claim does not salvage his case. Defendant’s
decision to terminate the temporary electrician position was ostensibly due to a budgetary
shortfall that affected all of the temporary electricians, not just those that participated in a
protected activity. Plaintiff has made no showing that his protected activities in the
spring of 201 I, nearly a year prior to his termination, caused defendant to eliminate the
temporary electrician position altogether. In short, plaintiff’s evidentiary proffer—even
when viewed in the light most favorable to plaintiff—is not sufficient to overcome the
summary judgment bar.
13 Plaintiff argues that Mr. Riley’s declaration is inadmissible because he was employed by an
AOC division that was “separate and distinct from the electrical division.” Pl.’s Opp’n at 42.
Plaintiff cites no evidence, however, showing that Mr. Riley, himself an Operations Manager at
AOC, was incompetent to testify to AOC’s comprehensive budget reductions.
18
CONCLUSION
Accordingly, for all the foregoing reasons, defendant’s Motion for Summary
Judgment is GRANTED. An Order consistent with this decision accompanies this
Memorandum Opinion.
RICHARD
United States District Judge
l9
(“Vacancy Announcement”) [Dkt. #18-8]. The Vacancy Announcement stated that
applicants would “be evaluated on their ability to perform the duties of the position rather
than [on the] length of [their] experience." Vacancy Announcement at 002. Human
Resources identified ten AOC employees as potential candidates for the position. See
Def.’s Mot. Ex. 16 at 4 [Dkt #18-18]. Four of these candidates received interviews: (1)
Robert Gallagher (“Gallagher”), who is Caucasian, (2) Omega Armah (“Armah”), who is
African American, (3) Terrence Jones (“Jones”), who is African American, and (4)
plaintiffPaulk, who is Caucasian. Def.’s SMF 11 17. A panel consisting of Supervisor
Banks, HOB Electrical Shop Supervisor Adeyemi (“Adeyemi”), and Assistant HOB
Superintendent Murphy (“Murphy”) (collectively, the “HOB panel” or “panel”)
conducted the interviews. Def.’s SMF 11 13. Adeyemi served as the selecting official.
Def’s Mot. EX. 5 (“Adeyemi Dep.’”) at 12:10 [Dkt #18-5].
After conducting the interviews, the HOB panel ranked each candidate and
selected two of the four candidates for permanent employment. Specifically, the panel
selected Armah, who held a Journeyman’s license from the state of Maryland, and
Gallagher, who held a Level IV Fire Alarm Technician Certificate from the National
Institute of Certification of Engineering Technologies (“NICET”). See Def.’s SMF 11 20;
Def.’s Mot. Ex. 8b at AOC 117, 119, 218, 220—22 [Dkt #18—9]. Neither Paulk, who
received the third highest interview score, nor Jones. was selected. 2 See Def.’s SMF fl
27.
2 Plaintiff alleges that after the interviews concluded, the HOB panel destroyed records
pertaining to its selection, including the answer sheet scoring candidates’ interview responses,
3
After filling two ofthe three vacancies, the panel requested a new referral list from
which to select the third employee. Def.’s SMF 11 23. Human Resources’ second referral
list did not include either Paulk or Jones. Def.’s SMF 11 23. After completing its
evaluation process, the HOB Panel selected J abbar Sisney, an African American male,
who, in addition to receiving Union training was in the process of obtaining his
journeyman license. Def.’s SMF W 28-29. After selecting the three permanent
electricians, the HOB managers terminated the entire night shift temporary electrician
work force. Def’s SMF 11 31. Three of the seven terminated employees were African-
American and four were Caucasian. See Def’s Mot. Ex. 16 at 2; Def.’s SMF j] 32.
Plaintiff commenced the instant action against the AOC on July 17, 2012, alleging
discriminatory and retaliatory practices in violation of the CAA.3 See generally Compl.
After discovery concluded, defendant moved for summary judgment under Rule 56 of the
Rules of Civil Procedure. See generally Def.’s Mot. For the reasons set forth below,
defendant’s motion is GRANTED.
LEGAL STANDARDS
Summary judgment is proper when the pleadings, stipulations, affidavits, and
admissions in a case show that there is no genuine issue as to any material fact. Fed. R.
the interview scoring matrix and the panelists’ justification memorandum explaining their
selection. See Pl.’s Opp’n at 7.
3 Plaintiff elected in his Opposition not to pursue his age discrimination claim (Count IV).
Accordingly, this Court does not address the merits of that allegation. See P1.’s Opp’n at 1, n. 1.
4
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must accept
as true the evidence of, and draw “all justifiable inferences” in favor of, the party
opposing summaryjudgment. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 255
(1986). Although district courts approach summary judgment in the employment
discrimination and retaliation context with “special caution,” plaintiffs are not relieved of
the burden to support their claims with competent evidence. Brown v. Mills, 674 F.
Supp. 2d 182, 188 (D.D.C. 2009). Summaryjudgment is appropriate against a
nonmoving party that “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex, 477 US. at 322.
The CAA, which makes Title VII ofthe Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000c et seq, applicable to the legislative branch ofthe federal government,
prohibits “personnel actions” based upon racial discrimination and retaliation for
protected activities. See 2 U.S.C. §§ 1302(a)(2), 1311(a), 1317(a). Title VII makes it
unlawful for employers to “discriminate against any individual . . . because of such
individual’s race.” 42 U.S.C. § 2000e—2(a)(1). Title VII also prohibits employers from
retaliating against employees that have engaged in protected activities by “testiflyingL
assist[ing], or participat[ing] in any manner in an investigation, proceeding, or hearing.”
42 U.S.C. § 2000e—3(a).
Until recently, the burden-shifting test articulated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973) governed a court’s inquiry when, as here, a plaintiff adduced
no direct evidence of discrimination or retaliation. Under the McDonnell Douglas
5
framework, the complainant had to establish a prima facie case of discrimination. See id
at 802. Thereafter, the burden shifted “to the employer to articulate some legitimate,
nondiscriminatory reason” for its conduct. Id. It was then incumbent on the plaintiff to
show that the employer’s proffered reason was pretextual. Id. at 804. Our Circuit,
however, has simplified this inquiry. Under the revised approach, if the employee has
suffered an adverse employment action, and the employer proffers a “legitimate,”
nondiscriminatory reason for the adverse employment action, the court “need not—and
should not—decide whether plaintiff actually made out a prima facie case under
McDonnell Douglas.” Brady 12. Office o/IS‘ergeant at Arms, 520 F.3d 490, 494 (DC. Cir.
2008); see Jones v. Bernanke, 557 F.3d 670. 678 (DC. Cir. 2008) (applying Brady to
Title VII retaliation claims). The sole issue for the Court is retaliation or discrimination
vel non, and becomes, in essence, a question of whether a reasonable jury could find that
the employer’s asserted rationale “was the actual reason" for its actions. See Brady, 520
F.3d at 494.
ANALYSIS
Plaintiff here alleges two adverse employment actions: his non-selection to the
roster of permanent electricians, and his termination as a temporary night shift employee.
Discussing each adverse action in turn, I find that plaintiffhas not shown a genuine issue
of material fact that defendant’s actions violated the CAA.
I. Non-Selection
Plaintiff claims that he was not selected as a permanent electrician because of his
Caucasian race and his participation in protected activities. Defendant has rebutted these
6
claims with a legitimate, non-discriminatory reason for plaintiff’s non-selection, namely,
that the selected electricians held superior qualifications. See Def.’s Mot. at 17-23.
Armah, the first African-American selectee. completed a Union apprenticeship, was a
Journeyman Electrician, and held a Master Electrician Certificate from the state of
Maryland. See Def.’s Mot. Ex. 8b at AOC 221—22. Sisley, the second African-American
selectee, completed Union training and, at the time of his interview, was working toward
his Master’s license. See Def.’s Mot. 8c at AOC 078, O82, O86 [Dkt. #18—10].
Gallagher, the Caucasian selectee, was similarly well qualified, having been certified as a
Level IV Fire Alarm Technician by the NICET. See Def.’s Mot. Ex. 8b at AOC 119.
Paulk, by contrast, held only a Level I certification from the National Burglar and Fire
Association. See Def.’s Mot. Ex. 1 (“Paqu Dep.”) at 12:11-23 [Dkt. #18-1].
In light of defendant’s nondiscriminatory rationale for its hiring decision, the
presumption of discrimination “simply drops out of the picture.” See Burke v. Gould,
286 F.3d 513, 520 (DC. Cir. 2002) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 US.
502, 511 (1993)). To survive summary judgment. plaintiff must show that a reasonable
jury could nonetheless find discriminatory animus. Holcomb v. Powell, 433 F.3d 889,
896-97 (DC. Cir. 2006). The Court’s inquiry at thisjuncture is guided by “(1) the
plaintiffs prima facie case; (2) evidence the plaintiff presents to attack the employer's
proffered explanation for its actions; and (3) any further evidence of discrimination that
may be available to the plaintiff.” Id. at 897.
Although plaintiff might have relied on any of these three categories of evidence,
he primarily challenges defendant’s qualifications-based explanation. Plaintiff claims
7
that the HOB panel “downplayed” his prior work experience, scored his interview
“unfairly” tojustify its decision, and then “fabricated” his references to conceal its
discriminatory motives.4 See Pl.’s Opp’n at 22-24, 32—38. Plaintiff’s claims are
unavailing for several reasons. First, Title VII does “not hold employers liable for
erroneous judgment, unless that judgment is motived by an illegal discriminatory
motivation.” Phillips v. Holladay Prop. Sens, Inc, 937 F. Supp. 32, 37 (BBC. 1996).
Put simply, charges of unfairness, no matter how well-founded, do not by themselves
prove unlawful discrimination. See Royall v. Nat’l Ass ’n of Letter Carriers, AFL—CIO,
507 F. Supp. 2d 93, 110 (BBC. 2007) (“It may be that the decision to terminate the
plaintiff was . . . on balance, unfair, but the plaintiff has provided no evidence at all that it
was motivated by his employer's discriminatory intent, and that is the question that the
Court must answer.”). 5 Indeed, it bears emphasizing that federal courts are not
empowered by the civil rights laws to referee each and every employment decision or
dispute. Nor should they beathat is emphatically not the Court’s role. Courts are not
“super—personnel department[s] that reexaminej] an entity’s business decisions,” and
must refrain from substituting their own opinions for those of an employer with
4 The Court renders no judgment as to the merits of this allegation. Putting aside its highly
speculative nature, it ignores evidence in the record that some of plaintiff’s references may have
been less than glowing. See Def.’s Reply at 19-20.
5 The law on this point is overwhelming. See, e.g., Agugliaro v. Brooks Bros, Inc, 927 F. Supp.
741, 747 (S.D.N.Y.l 996) (“Even assuming defendants were wrong in their belief that plaintiff
had engaged in sexual misconduct, what is significant is that they based their decision to dismiss
plaintiff on that belief, and not on his age, gender. or pension status”); Grier v. Casey, 643 F.
Supp. 298, 308 (W.D.N.C. 1986) (“The law is clear that an employer's reason for his action may
be a good reason, a bad reason, a mistaken reason. or no reason at all, as long as the decision was
not based on race and/or sex or other unlawful discriminatory criteria.” (citing cases)).
particularized knowledge about its trade. Barbour v, Browner, 181 F.3d 1342, 1346
(DC. Cir. 1999) (citation and internal quotation marks omitted).
The HOB panelists were thus free to!and apparently did—consider candidates’
licensure, formal training, interview responses, and prior work experience as they saw fit.
Whether it was fair for the panel to accord less weight to applicants’ job experience than
to other aspects oftheir applications is irrelevant. The issue before the Court is
discrimination vel non, and plaintiff has not made even a colorable showing of such
animus. The November 2011 Vacancy Announcement informed candidates that
“[a]pplicants [would] be evaluated on their ability to perform the duties of the position
rather than [on the] length of [their] experience.” Vacancy Announcement at AOC 002.
By selecting candidates with more formal training than practical experience, the panel
hewed to this criterion.6 The panel’s focus on technical ability was, moreover, borne out
in the interview process. Although plaintiff contends that his answers were “superior” to
or, in some cases, equal to, those given by the selected candidates, see Pl.’s Opp’n at 34-
35, there is evidence that plaintiff received lower scores than either of the selected
candidates in skill-related categories, including in “Knowledge of Electrical and
Electronic Theory and Instruments" and "Ability to Use and Maintain Hand Tools Used
in Electrical Work,” see Adeyemi Dep. at 120:13-lle5; 121:19-122zll. Whether the
panel’s scoring decisions were objectively "right" or “fair” is immaterial. They
6 Plaintiff argues that defendant’s reliance on the selectees’ licensures is a post-hoe
rationalization because “[t]he panelists testified that having a license would only have been
important if the panel was attempting to make a choice between two otherwise equal candidates,
which was not the case here.” Pl.‘s Opp’n at 27. However, regardless of whether licensure was
dispositive, the record is clear that licensure was a component of the panel’s calculus.
9
demonstrate that the panel had reservations about plaintiffs abilities as they compared to
those of Gallagher and Armah. To coin this Circuit‘s logic, “[t]here is nothing the least
bit fishy about the interviewers’ giving slightly less emphasis to the applicants’
credentials than to the manner in which each candidate proposed to do the job-especially
when one considers that they had the benefit ofa prior determination that each of the
interviews were qualified.” See Fischbach v. Dist. ofColumbz'a Dep ’t 0fC0rr., 86 F.3d
1180, 1 184 (DC. Cir. 1996).7 This Court, therefore, will venture no further. Because
plaintiff has failed to produce evidencefibeyond cursory allegations of unfairness — of
discriminatory intent, his first attack fails to pass muster.
Plaintiff‘s second argument is similarly anemic. He asserts that defendant’s
reasoning is pretexual because the panel did not satisfactorily “explain the reasons for
passing Mr. Paulk over for the third vacant position.” See Pl.’s Opp’n at 26. To say the
least, this is insufficient to defeat summary judgment and, in any event, misconstrues the
record. The panelists, though not able to point to a single interview response
disqualifying plaintiff, cited myriad concerns about plaintiff’s qualifications. Murphy,
for example, raised concerns about plaintiffs expertise in the electrical field, see Def.’s
Mot. Ex. 4 at 264:2-13 [Dkt. #18-4], 8 and Banks opined that plaintiff’s skills were more
7 Indeed “[i]n cases involving a comparison of the plaintiff‘s qualifications and those of the
successful candidate, we must assume that a reasonable juror who might disagree with the
employer's decision . . . would not usually infer discrimination on the basis ofa comparison of
qualifications alone. In a close case, 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 ajudgment call." Aka v. Wash. Hosp. Ctr., 156
F.3d 1284, 1294 (DC. Cir. 1998) (en banc).
8 Plaintiff seeks to discount Murphy’s statements because Murphy "deferred to Banks and
Adeyemi” on the ultimate hiring decisions. Sec Pl.’s Opp’n at 23. 1 disagree. Regardless of
l0