Boone v. Rice ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
ANITA BOONE, )
)
Plaintiff, )
)
v. ) Civil Action No. 05-346 (RWR)
)
HILLARY CLINTON, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION AND ORDER
The plaintiff, Anita Boone, has sued the Secretary of State1
under Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act (“ADEA”) alleging that the State
Department discriminated against her because of her age, race,
and sex by refusing to promote her on two occasions. The
Department moves for summary judgment, contending that Boone
failed to exhaust her administrative remedies and that she has
not rebutted the legitimate, nondiscriminatory reasons offered by
the Department for its actions. Because Boone successfully
exhausted her administrative remedies and has sufficiently
rebutted the Department’s legitimate, nondiscriminatory reasons
for her race discrimination claim with respect to the first
1
Hillary Clinton is substituted for Condoleeza Rice under
Fed. R. Civ. P. 25(d).
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promotion opportunity only, the Department’s motion for summary
judgment will be granted in part and denied in part.2
BACKGROUND
Boone, a black female over age forty, is employed as an
Information Analyst at the State Department’s Office of
Information Resources Programs and Services (“IPS”). (Def.’s
Stmt. of Material Facts (“Def.’s Stmt.”) ¶ 1; Compl. ¶ 6.) Her
position involves working with other offices in response to
Freedom of Information Act (“FOI” or “FOIA”) and Privacy Act
requests; performing classification review and records
management, including using the Freedom of Information Document
Management System (“FREEDOMS”); conducting briefings for officers
traveling overseas; and occasionally serving for short periods as
acting branch chief. (Def.’s Stmt. ¶ 3; Pl.’s Stmt. of Material
Facts (“Pl.’s Stmt.”) ¶ 63; Pl.’s Mem. of P. & A. in Opp’n to
Def.’s Mot. (“Pl.’s Mem.”), Ex. 5 at 0330.) She has held this
position since 1997 and has been promoted from GS-11 to GS-12.
(Compl. ¶ 6; Pl.’s Mem. ¶ 63.) At the relevant times, Boone’s
supervisor was John Cruce, a Branch Chief (Def.’s Stmt. ¶ 2), and
she received positive work reviews from 1997 through 2002.
(Pl.’s Stmt. ¶ 64.)
2
Boone does not defend her hostile work environment claim,
Count 3. (Pl.’s Mem. of P. & A. in Opp’n to Def.’s Mot. (“Pl.’s
Mem.”) at 43 n.6.) It will be dismissed.
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In response to Vacancy Announcement A/EX-02-060 (“Vacancy
02-060”) for multiple Program Analyst positions, Boone applied
for a grade level 13 position. (Def.’s Stmt. ¶¶ 4, 12.) The
announcement stated that applicants should have the following
knowledge, skills, and abilities (“KSAs”):
(1) ability to communicate orally in performing
program analysis work; (2) knowledge of regulations
and policies governing FOIA, Privacy Act, and
Executive Order 12958; (3) ability to communicate in
writing in program analysis work; (4) knowledge of
principles and practices of program evaluation and
oversight; and (5) ability to perform in-depth legal
research.
(Id. ¶ 5.) A selection panel was formed to make hiring
recommendations and included the following eight Branch Chiefs:
Marria Braden, John Cruce, Frank Foldvary, Audree Holton,
Patricia Magin, Alice Ritchie, Patrick Scholl, and Tasha Thian.
(Id. ¶ 7.) The panel received a certificate from a human
resources officer with thirty-two unranked candidates, including
Boone. (Id. ¶ 11.) The panel created a process to rank the
applicants based on the KSAs.3 Following the panel’s evaluation,
Boone had an aggregate score of 157, which tied for the second
highest score. (Id. ¶ 20; Def.’s Mem. of P. & A. in Supp. of
Def.’s Mot. for Summ. J. (“Def.’s Mem.”), Ex. 2 at 0238.) When
3
The Department asserts that there were five KSAs, which
the hiring announcement reflects. (Def.’s Stmt. ¶ 5.) However,
the evaluation sheet, as the plaintiff contends, appears to
reflect that “performance” was also considered in addition to the
five KSA categories. (See Def.’s Mem. of P. & A. in Supp. of
Def.’s Mot. for Summ. J., Ex. 2 at 0237; Pl.’s Mem., Ex. 9.)
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assigning scores, the panel assumed that the applications were
accurate and scored the candidates based solely on the
information stated in their applications. (Def.’s Stmt. ¶ 18.)
Although the panel did not interview the candidates, it did meet
to discuss them. The panel looked for candidates who would be
capable of becoming future Branch Chiefs (id. ¶ 26), and it
considered management potential, expertise in the field,
communication skills, and leadership skills as well. (Def.’s
Mem., Ex. 2 at 0235.) Panel members Scholl, Ritchie, and Braden
expressed concerns with Boone’s FOI, FREEDOMS, geography,
communication and leadership skills based on their experiences
with and observations of her. (Def.’s Stmt. ¶¶ 33-38.) Cruce,
on the other hand, highly recommended Boone for the promotion.
(Id. ¶ 39.) The panel recommended for promotion any candidate
who received a majority vote of the panel members. (Id. ¶ 42.)
The panel recommended seven candidates (id. ¶ 43), including
Margaret Scholl, the wife of panel member Patrick Scholl. (Id.
¶ 30.) Six were actually promoted,4 as Margaret Scholl was later
deemed ineligible for a promotion. (Id. ¶ 46; Pl.’s Stmt ¶ 43.)
The panel did not recommend Boone, who received four votes, and
she did not receive a promotion. (Def.’s Stmt. ¶¶ 47, 52.)
Boone received official notice that she was not selected on
4
Candidates Hartman, Pace, Dubose, Chichester, Glenn, and
Sawka were promoted. (Def.’s Mem. at 10 n.8.)
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August 2, 2002. (Id. ¶ 52.) On July 25, 2002, before receiving
official notice, Boone sent an email to Arlene Brandon, an
“EEO/ADR Specialist” in the Office of Civil Rights, stating her
wish to file an equal employment opportunity (“EEO”) complaint
because her non-selection was discriminatory. (Pl.’s Mem., Ex.
12 at 0157.) Brandon initially assigned Gwen Strogen-Boozer as
Boone’s EEO counselor on August 1, 2002. (Id. at 0160.) After
an initial meeting, Boone requested a different counselor on
August 2, 2002. (Id. at 0161.5) Boone had contact with Leroy
Potts, another EEO counselor to whom she was not assigned, and
Boone’s attorney sent Potts a letter indicating her intent to
file a complaint and the nature of the complaint. (Id. at 0163.)
Brandon ultimately assigned as Boone’s EEO counselor Diane
Ferguson, with whom Boone had her initial contact on October 9,
2002. (Def.’s Mem., Ex. 4, Dep. of Anita Boone at 116.)
Later, Boone applied again for a promotion under Vacancy
Announcement A/EX-02-085 (“Vacancy 02-085”). The panel received
a certificate ranking twenty-one eligible applicants, including
Boone. (Def.’s Stmt. ¶¶ 56-57.) Boone ranked fifth on the list,
tied with two other applicants for the third highest score.
Human resources instructed the panel to follow the “Rule-of-
Three.” (Id. ¶ 58.) Under the rule, the selection officials are
5
This page number, missing from the document, is supplied
by the Court.
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to “[c]onsider only the first three applicants on the
certificates. If an applicant declines, then [the selection
officials] may consider the next candidate on the list.” (Def.’s
Mem., Ex. 2 at 0514.) The panel recommended the first two
candidates on the ranked list for promotion; it did not select
Boone. (Def.’s Stmt. ¶ 61.)
Counts 1, 2, and 4 of Boone’s complaint allege,
respectively, race discrimination, gender discrimination, and
disparate treatment race and gender discrimination, all in
violation of Title VII. Count 5 alleges age discrimination in
violation of the ADEA. The Department moves for summary judgment
on Boone’s race, gender, and age discrimination claims in Counts
1, 2, 4, and 5, contending that Boone failed to exhaust her
administrative remedies with regard to Vacancy 02-060 and that
she has not rebutted the Department’s legitimate,
nondiscriminatory reasons offered for its actions. The
Department also seeks dismissal of Counts 1, 2, and 5, each of
which alleges “a policy and practice of discrimination,” by
arguing that pattern and practice claims cannot be brought by an
individual plaintiff. Boone opposes summary judgment on those
counts, arguing that there are disputed material facts bearing on
whether the Department discriminated against her by refusing to
promote her on two occasions. Boone also argues that she has not
asserted any pattern or practice claim.
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DISCUSSION
On a motion for summary judgment, “[t]he inquiry performed
is the threshold inquiry of determining whether there is a need
for a trial –– whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). Summary judgment may be granted only where “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)(2); see also Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). A material fact is
one that is capable of affecting the outcome of the litigation.
Liberty Lobby, Inc., 477 U.S. at 248. A genuine issue is one
where the “evidence is such that a reasonable jury could return a
verdict for the nonmoving party,” id., as opposed to evidence
that “is so one-sided that one party must prevail as a matter of
law.” Id. at 252. A court considering a motion for summary
judgment must draw all “justifiable inferences” from the evidence
in favor of the nonmovant. Id. at 255. The nonmoving party,
however, must do more than simply “show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
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Rather, the nonmovant must “come forward with ‘specific facts
showing that there is a genuine issue for trial.’” Id. at 587(emphasis omitted) (citing Fed. R. Civ. P. 56(e)). In the end,
“the plain language of Rule 56(c) mandates the entry of summary
judgment . . . against a party who 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 Corp. v. Catrett, 477 U.S. 317, 322
(1986).
I. EXHAUSTION OF ADMINISTRATIVE REMEDIES
Before filing a lawsuit, “[a]n aggrieved person must
initiate contact with a Counselor within 45 days of the date of
the matter alleged to be discriminatory or, in the case of
personnel action, within 45 days of the effective date of the
action.” 29 C.F.R. § 1614.105(a)(1). The Department asserts
that Boone did not contact an EEO counselor within forty-five
days following her non-selection for Vacancy 02-060. (Def.’s
Mem. at 14-15.) Boone officially learned of her nonselection for
Vacancy 02-060 on or about August 2, 2002, but did not officially
begin to receive counseling until October 9, 2002. Boone asserts
that the EEO process began when she contacted the Office of Civil
Rights on July 25, 2002, noted her intent to file an EEO
complaint, and requested an appointment with a counselor. (Pl.’s
Mem. at 28.)
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The regulation does not facially require that a plaintiff
meet with a counselor within forty-five days, but instead states
that a complainant must initiate contact within that time. The
EEOC has interpreted “initiate contact” to require that “an
employee who believes that she has been the subject of
discrimination must timely (1) contact an agency official
‘logically connected’ with the EEO process (not necessarily a
Counselor) and (2) demonstrate an intent to begin the EEO
process.” Klugel v. Small, 519 F. Supp. 2d 66, 71 (D.D.C. 2007)
(noting that the D.C. Circuit has not yet addressed the meaning
of the phrase “initiate contact”). See also Lane v. Tschetter,
Civil Action No. 05-1414 (EGS), 2007 WL 2007493, at *3 (D.D.C.
Jan. 15, 2007) (applying the EEOC’s definition of “initiate
contact” to find that plaintiff’s letter to the official
responsible for EEO functions had not begun the EEO process
because it did not express an intent to begin the EEO process or
include sufficient facts of alleged discrimination). Within the
forty-five day window, Boone contacted Brandon, the EEO/ADR
Specialist, had an initial conversation with EEO counselor
Strogen-Boozer, and sent through her attorney a letter to EEO
counselor Potts discussing her intent to file a complaint and the
nature of her complaint. (See Pl.’s Mem. at 28-29; Ex. 12 at
0157-0158, 0160, 0161, 0170-0171.) The Department did not
contest Boone’s assertions that she contacted Brandon, Strogen-
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Boozer, or Potts, nor did it argue that these contacts were
unconnected with the EEO process. (See Def.’s Mem. at 14-15.)
Under the EEOC’s interpretation, Boone initiated contact with a
counselor within the forty-five day period required by
§ 1614.105(a)(1).
II. DISCRIMINATION CLAIMS
A plaintiff bringing discrimination claims under Title VII
or the ADEA without direct evidence may employ the
burden-shifting framework approved in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03 (1973), when the defendant denies
that its actions were motivated by the plaintiff’s race, sex, or
age. Carmona v. Snow, Civil Action No. 05-1194 (JGP), 2007 WL
915220, at *5 (D.D.C. Mar. 26, 2007) (noting that ADEA claims are
analyzed under the McDonnell Douglas framework as Title VII
claims are). Under McDonnell Douglas, Boone would be required to
show that: 1) she is a member of a protected class; 2) she
applied for and was qualified for the available position; 3)
despite her qualifications, she was rejected; and 4) either
someone filled the position or it remained vacant and the
employer continued to seek applicants. Peterson v. Hantman,
Civil Action No. 02-2552 (RWR), 2006 WL 1442662, at *3 (D.D.C.
May 25, 2006). However, the D.C. Circuit has clarified that the
prima facie factors are “largely [an] unnecessary sideshow” and
concluded that
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[i]n a Title VII disparate-treatment suit where an
employee has suffered an adverse employment action and
an employer has asserted a legitimate,
non-discriminatory reason for the decision, the
district court need not - and should not - decide
whether the plaintiff actually made out a prima facie
case under McDonnell Douglas. Rather, in considering
an employer’s motion for summary judgment or judgment
as a matter of law in those circumstances, the district
court must resolve one central question: Has the
employee produced sufficient evidence for a reasonable
jury to find that the employer’s asserted
non-discriminatory reason was not the actual reason and
that the employer intentionally discriminated against
the employee on the basis of race, color, religion,
sex, or national origin?
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir.
2008). The condensed inquiry does not alter the plaintiff’s
burden. “The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Texas Dept.
Of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). A court
looks to whether a reasonable jury could infer intentional
discrimination from all of the evidence including: 1) the
plaintiff’s prima facie case, 2) evidence presented to attack the
employer’s proffered explanation for its actions, and 3) further
evidence of discrimination such as evidence of discriminatory
statements or attitudes by the employer. Carter v. George
Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004).
“Pretext may be established ‘directly by persuading the
court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered
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explanation is unworthy of credence.’” Sewell v. Chao, 532 F.
Supp. 2d 126, 138 (D.D.C. 2008) (citing Burdine, 450 U.S. at
256). However, it is insufficient to simply show “that a reason
given for a job action is not just, or fair, or sensible”;
instead the plaintiff must establish “that the explanation given
is a phony reason.” Id. at 138 (stating that once a legitimate
reason has been given, “the issue is not the correctness or
desirability of [the] reasons offered . . . [but] whether the
employer honestly believes in the reasons it offers” (alterations
in original) (quoting Fischbach v. D.C. Dep’t of Corr., 86 F.3d
1180, 1183 (D.C. Cir. 1996))); see also St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993) (reasoning that a “rejection of
the defendant’s proffered reasons” would not, by itself, compel
judgment for the plaintiff because “the Title VII plaintiff at
all times bears the ‘ultimate burden of persuasion’” (citations
omitted)). A plaintiff can attack an employer’s qualification-
based explanation by comparing her qualifications to those of
successful applicants or by exposing flaws in the employer’s
explanation. Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir.
2006). “Title VII liability cannot rest solely upon a judge’s
determination that an employer misjudged the relative
qualifications of admittedly qualified candidates[,]” however.
Id. (internal citation and quotation omitted). To show pretext,
a plaintiff “must show ‘both that the reason was false, and that
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discrimination . . . was the real reason.’” Weber v. Battista,
494 F.3d 179, 186 (D.C. Cir. 2007) (quoting Hicks, 509 U.S. at
515).
A. Vacancy 02-060
1. Legitimate, nondiscriminatory reasons
The Department contends that despite Boone’s high aggregate
score, she was not selected to fill Vacancy 02-060 because panel
members had concerns regarding her leadership and communication
skills. In particular, Ritchie had worked with Boone on several
projects and found that Boone had “difficulty communicating and
conveying her thoughts into words,” had not shown solid geography
skills, and had not been thorough in documenting FREEDOMS
entries. (Def.’s Mem., Ex. 1 at 0223-24; Ex. 2 at 0226.) Other
panel members, such as Scholl and Braden, also noted a concern
with Boone’s communication and leadership skills and declined to
vote for her. (See id., Ex. 2 at 0233 (contending that as
Boone’s former supervisor, Scholl believed that Boone could not
grasp the details of the job and did not stay on top of her
cases); id. at 0243 (stating Braden’s belief that Boone needed to
“enhance leadership and communication skills” and had not taken
recent training to enhance her skills).)
2. Pretext
Boone presents statistical evidence to demonstrate that the
defendant’s stated reasons for her non-selection were pretext.
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“[E]vidence of systemic disparate treatment is relevant to and
probative of the issue of pretext even when it is insufficient to
support a pattern and practice disparate treatment case.” Bell
v. Envtl. Prot. Agency, 232 F.3d 546, 553 (7th Cir. 2000). While
statistical evidence is “‘less significant’” in an individual
disparate treatment case where “‘the ultimate issue is whether
the particular plaintiff was the victim of an illegitimately
motivated employment decision,’” Horvath v. Thompson, 329 F.
Supp. 2d 1, 10 (D.D.C. 2004) (quoting Krodel v. Young, 748 F.2d
701, 710 (D.C. Cir. 1984)), such evidence may still be probative
of an employer’s motive in making selection decisions “and can
therefore create an inference of discriminatory intent with
respect to the individual employment decision at issue.” Cooper
v. Southern Co., 260 F. Supp. 2d 1258, 1267 (N.D. Ga. 2003).
Thus, in an individual disparate treatment case, statistical
evidence is “admissible and may be helpful, though ordinarily not
dispositive.” Krodel, 748 F.2d at 710.
Boone alleges that despite the high percentage of people of
color in this workplace in 2002, the number of black versus white
employees in each of three pay grades in the Information Response
Branch was as follows:
GS-13 GS-14 GS-15
Black 7 4 0
White 6 177 38
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(Pl.’s Stmt. ¶ 84.) While the low percentage of black GS-13s,
GS-14s, and GS-15s in the Information Response Branch may alone
be insufficient to raise an inference of discrimination, see
Whitener v. England, Civil Action No. 04-273 (LFO), 2006 WL
3755220, at *7 (D.D.C. Dec. 19, 2006) (finding that merely noting
the composition of a workforce, without more, did not sustain an
individual discrimination action), the unrebutted evidence6 of a
significant disparity between the racial composition of the pool
of qualified candidates for the vacancy and the racial
composition of the selectees can reasonably suggest pretext.
Thirty-two individuals applied for the vacancy, and, in an
initial evaluation, Cruce and another GS-13 Program Analyst
certified every one of the applicants as meeting the minimum
qualifications for the announcement. (Pl.’s Mem. at 18.) Eight
of these candidates were white, two were Hispanic, and twenty-two
were black. (Id.) However, of the seven candidates selected by
the panel, five were white and only two were black. (Id. at 39-
40.) That the selecting officials promoted more than seventy
percent of the white applicants deemed minimally qualified but
fewer than ten percent of black applicants deemed minimally
qualified can support Boone’s allegation that her non-selection
6
The defendant did not file a reply.
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was motivated by her race.7 While the analysis here might be
different if this statistical evidence were all that Boone
presented to survive the Department’s motion for summary
judgment, see Krodel, 748 F.2d at 710, Boone presents additional
evidence from which a trier of fact could reasonably conclude
that race motivated her non-selection.
Boone argues that she was more qualified than some of the
white applicants who were promoted. According to Boone, Glenn
lacked FOIA, Privacy Act, and litigation experience, had been at
the Department for only two months, and scored lower than Boone
in the panel’s ranking. (Pl.’s Mem. at 39.) In comparison to
her bachelor’s degree and five years of FOI experience, Boone
contends that Sawka’s two years of FOI experience and an
associate’s degree do not measure up.
Ordinarily, to allow a jury to infer discrimination, “the
qualifications gap [between the plaintiff and the selectee] must
be great enough to be inherently indicative of discrimination”
because in a close case, a reasonable juror might usually assume
that the employer is better able to make an assessment or make a
7
Because Boone does not argue that the promotions were
statistically skewed based on age or gender, the statistics do
not create a genuine issue of material fact for trial on her
gender discrimination and ADEA claims. Unbuttressed by
statistical support reflecting gender or age discrimination, the
additional evidence discussed below does not alone suffice to
fill the gap. Thus, the Department’s motion for summary judgment
will be granted with respect to those claims.
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judgment call. Holcomb, 433 F.3d at 897. The panel permissibly
considered what it believed to be relevant factors when
evaluating candidates in addition to the candidates’ scores,
including expertise, management skills, and leadership skills.8
(See Def.’s Mem., Ex. 2 at 0235.) Absent any other evidence, the
differences in education scores and FOI experience to which Boone
points might not reflect the wide gulf in qualifications
typically necessary to support an inference of unlawful
discrimination. See, e.g., Aka v. Washington Hosp. Ctr., 156
F.3d 1284, 1295, 1299 (D.C. Cir. 1998) (comparing nineteen years
of relevant experience and a master’s degree with two months of
relevant experience and no college degree); Lathram v. Snow, 336
F.3d 1085, 1092 (D.C. Cir. 2003) (comparing three years of
8
Glenn’s application reflects that he had worked previously
with the Presidential Recordings and Materials Preservation Act
and its “restriction categories . . . closely mirror those of
FOIA and the Privacy Act.” (Pl.’s Mem., Ex. 6 at 0448.)
Additionally, Glenn had attended several FOI and Privacy Act
training sessions and had experience with Executive Order 12958,
which was a skill relevant to the program analyst position.
(Id.) In considering Glenn’s candidacy, panel members expressed
belief that his prior experiences at the National Archives and
Records Administration and the Office of the Historian would be
beneficial to the Department and reflected strong expertise in
records and information management. (Def.’s Mem., Ex. 2 at 0226,
0244.)
Regarding Sawka, Ritchie believed that Sawka was a “good
risk” who was knowledgeable on all aspects of IPS and thorough in
her FREEDOMS entries. (Def.’s Mem., Ex. 2 at 0226.) Magin
believed that Sawka had been involved in complex cases, had good
research skills, demonstrated leadership skills through her
participation in working groups, and had desirable experiences
from a prior job. (Id. at 0232.)
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experience in public affairs, strong evaluations from former
supervisors, and expertise in drug interdiction issues with no
experience in public affairs and relevant experience limited to
editing a small drug enforcement newsletter). However, neither
Aka nor Lathram involved statistical evidence as additional proof
of pretext. Here, in the context of the wide statistical
discrepancy between the number of qualified black applicants and
the number of black selectees, even the less stark differences in
qualifications Boone presents could lend support to a reasonable
inference of a discriminatory motive. See Liberty Lobby, Inc.,
477 U.S. at 248.
In attempting to show animus, Boone also argues that Ritchie
unfairly based her opinion of Boone’s FOI skills on a brief
interaction they had fifteen years earlier in 1987. Evidence
that “an employer misjudged an employee’s performance or
qualifications is, of course, relevant to the question whether
its stated reason is a pretext masking prohibited
discrimination.” Fischbach, 86 F.3d at 1183. Ritchie based her
opinion largely on her claim that Boone said in 1987 that she
“didn’t feel [that] she could do the [FOI] work.” (Pl.’s Mem. at
36; Ex. 8 (“Ritchie Dep.”) at 93.) A defendant’s failure to
consider a plaintiff’s more recent, improved performance might
not indicate “an illegal discriminatory intent . . . as [s]he
could have relied solely on the plaintiff’s uncontested past
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performance problems.” Vasilevsky v. Reno, 31 F. Supp. 2d 143,
151 (D.D.C. 1998) (involving problems four and five years prior).
However, Boone has not left Ritchie’s opinion uncontested (Pl.’s
Mem. at 35-36), and a reasonable inference of bias could easily
be drawn from Ritchie’s refusal to leaven her opinion about
Boone’s FOI skills given that Cruce, the person who was most
familiar with Boone’s recent work, aggressively supported her
promotion in discussions with the other selecting officials.
(Pl.’s Mem., Ex. 4 at 0254-0255.) Moreover, a reasonable jury
could find that the Department’s use of Ritchie’s explanation is
pretextual since the Department assigned Boone soon after the
promotions were announced to train Glenn in FOI and the Privacy
Act. (See id. at 0003.)
Additionally, Magin asserted that Patrick Scholl was Boone’s
former supervisor and he criticized Boone’s performance during
selection panel discussions. (Def.’s Mem., Ex. 2 at 0232-0233.)
However, Boone insists, without challenge, that she never worked
with Patrick Scholl.9 (See Pl.’s Stmt. ¶ 37.) This raises a
factual issue about whether the selecting officials, who relied
on Boone’s lack of qualifications to justify their decision not
to promote her, did not accurately characterize Boone’s past work
9
Boone also contests that she previously worked with
Braden. (Pl.’s Stmt. ¶ 38.) However, Braden did not state that
they had worked together. Braden based her assessment in part on
her “experiences with [Boone]” (Def.’s Mem., Ex. 2 at 0243),
which could reflect interactions other than those as co-workers.
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experience. It also could undermine the credibility of their
neutral justification for not promoting Boone and could help
raise the specter that it was pretextual. Reasonable inferences
could easily be drawn that the justification partly masked, at
best, a bias favoring the candidate married to a panel member
whose criticisms were aimed at weakening his wife’s competitor’s
chances, or, at worst, racial animus. A reasonable jury could
conclude, from all of the statistical and other evidence Boone
offers, that the Department’s explanation for her non-selection
was a mere pretext for race discrimination.
B. Vacancy 02-085
1. Legitimate, nondiscriminatory reasons
For Vacancy 02-085, the Department states that the panel did
not select Boone because it followed OPM’s rule of three.
According to OPM’s hiring instructions, the rule of three
requires consideration of the first three applicants on the
certificate, and then if one of the candidates declines, the next
candidate can be considered. (Def.’s Mem., Ex. 2 at 0514.)
Unlike with Vacancy 02-060, OPM provided to the selection panel a
ranked list of eligible candidates for Vacancy 02-085. Boone was
listed fifth on the ranked list tied with two other people for
the third highest score. The Department selected the first two
candidates for promotion.
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2. Pretext
Boone argues that “there exists an issue [of] whether the
panel followed, or understood, the Rule of Three or declined to
discuss the merits of the candidates below the first two[.]”
(Pl.’s Mem. at 42.) There is some uncertainty as to whether the
panel adhered strictly to the rule of three. Ritchie described
the rule of three as requiring the selecting officials to “look
at the top three people to consider your selection. If you
decide that you want to hire one of those three, you may hire one
of those three and then you can look at the next three
people . . . [meaning] look at the two you didn’t hire and then
the next one on the list.” (Ritchie Dep. at 112-13.) Ritchie’s
description differs from the rule of three as described by the
vacancy’s selection instructions. The instructions note that the
next candidate can be considered when someone declines, but do
not indicate how to proceed when a candidate accepts a position.
Furthermore, it is unclear how the panel was to proceed when more
than one person is tied for the same score on the certificate.
The defendant asserts that the panel selected the two
highest-ranked applicants, but the defendant does not
affirmatively state whether the panel considered Boone. The
record does support Boone’s contention that she was considered.
(Pl.’s Mem., Ex. 4 at 0202 (“We did work our way down the list to
Ms. Boone.”).) But, she does not show how the panel’s
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consideration of her candidacy or the use of Ritchie’s
interpretation of the rule reflect a discriminatory motive. See
Fischbach, 86 F.3d at 1183 (stating that “[a]n employer’s failure
‘to follow its own regulations and procedures, alone, may not be
sufficient to support’ the conclusion that its explanation for
the challenged employment action is pretextual” (quoting Johnson
v. Lehman, 679 F.2d 918, 922 (D.C. Cir. 1982))); Kennedy v. D.C.
Gov’t, 519 F. Supp. 2d 50, 63 (D.D.C. 2007) (noting that a poor
selection process is insufficient evidence absent “demonstrably
discriminatory motive” and a court evaluating an employment
decision in hindsight “must respect the employer’s unfettered
discretion to choose among qualified candidates” (quoting
Fischback, 86 F.3d at 1183) (internal quotation marks omitted)).
The irregularities in the process even if proven must indicate a
discriminatory motive. See Hamilton v. Paulson, 542 F. Supp. 2d
37, 48 (D.D.C. 2008) (stating that a panel member’s
misunderstanding of the nature of the position or lack of
expertise failed to raise an inference of bias because the
irregularities may have indicated error or incompetence, but not
discrimination); Butler v. Ashcroft, 293 F. Supp. 2d 74, 79-80
(D.D.C. 2003). Furthermore, Boone does not argue that she was
substantially more qualified than either of the two promoted
candidates. Absent additional stronger evidence, the fact that
the panel may not have followed the Department’s policy precisely
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is insufficient here to support an inference of discriminatory
motive.
CONCLUSION
Because Boone has presented evidence reflecting that she
contacted the Department’s EEO counselor within forty-five days,
Boone has shown that she initiated contact as was required. She
has also presented evidence from which a reasonable jury could
conclude that the Department’s proffered legitimate non-
discriminatory reasons for not promoting her for Vacancy 02-060
were a pretext for race discrimination, but she has not presented
evidence from which a reasonable jury could infer gender or age
discrimination. Additionally, she has not shown that the
Department’s legitimate non-discriminatory reasons proffered for
not promoting her for Vacancy 02-085 were a pretext for race,
age, or gender discrimination. Accordingly, it is hereby
ORDERED that the Department’s motion [19] for summary
judgment be, and hereby is, DENIED with respect to Boone’s claim
of race discrimination for Vacancy 02-060 and GRANTED in all
other respects. It is further
ORDERED that Count 3 of the complaint be, and hereby is,
DISMISSED. It is further
ORDERED that the parties confer and file by February 12,
2010 a joint status report and proposed order reflecting three
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mutually agreeable dates on which to hold a scheduling
conference.
SIGNED this 29th day of December, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge