Pederson v. Preston ( 2009 )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
ROGER O. PEDERSON )
)
Plaintiff, )
)
v. ) Civil Action No. 06-1418(RCL)
)
KAREN G. MILLS,1 Administrator )
Small Business Administration, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION
Upon consideration of defendant’s Motion for Summary Judgment [43], plaintiff’s
Opposition [45], defendants’ Reply [47], the applicable law and the record herein, for the reasons
set forth below, the Motion for Summary Judgment will be DENIED as to all claims pertaining
to the GS-14 position, and GRANTED as to all claims pertaining to the GS-15 position,
articulated in paragraph 10 of the Complaint, for which plaintiff failed to exhaust administrative
remedies.
I. Background
Plaintiff Roger Pederson, then a 52-year-old white male, applied for a GS-14 Examiner
position for which he was qualified in the Investment Division of the Small Business
Administration (“the Position”), and the Position went to Lourdes Gatell, a significantly younger
Hispanic woman of comparable qualifications (“Selectee”). The Position included duties as
acting Director of Examinations—a GS-15 position—in the Director’s absence, and Selectee
later applied for and was promoted to that position permanently. Based on these facts, plaintiff
brings claims of race and sex discrimination under Title VII of the Civil Rights act of 1964, as
1
Karen G. Mills is substituted for Sandy K. Baruah pursuant to Fed. R. Civ. P. 25(d).
amended, codified at 42 U.S.C. § 2000e, et seq. (“Title VII”), and age discrimination under the
Age Discrimination in Employment Act of 1967, as amended, codified at 20 U.S.C. § 623, et
seq. (“ADEA”), in his non-selection for both the Position and the higher GS-15 position.
Plaintiff has produced evidence to establish a prima facie case in the Title VII and ADEA
claims pertaining to the GS-14 position. Defendant has asserted a legitimate, non-discriminatory
basis for the hiring decision (that plaintiff did not get along with co-workers), and now seeks
summary judgment by alleging that plaintiff cannot provide evidence of discriminatory intent or
prove that defendant’s legitimate reason was pretext. Plaintiff has responded by providing
evidence of possibly discriminatory remarks made by the deciding official and two interviewing
officials in his non-selection, and by alleging that defendant’s proffered reason is beyond belief.
II. Legal Standard
a. Summary Judgment
Summary judgment is appropriate upon a showing that “there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). The moving party must point to an absence of material evidence in the record, and
then the burden shifts to the non-movant to show the existence of a dispute for trial. Bias v.
Advantage Intern, Inc., 905 F.2d 1558, 1561 (D.C. Cir. 1990). In reviewing disputed facts, the
Court must draw all reasonable inferences in favor of the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party must, however, provide more than
a “scintilla of evidence,” and summary judgment is appropriate where the evidence could not
persuade a reasonable jury to find for the non-movant. Id. at 252. Conclusory allegations by the
non-movant are not enough to survive summary judgment. Exxon Corp. v. F.T.C., 663 F.2d 120,
127 (D.C. Cir. 1980).
b. McDonnell Douglas
In the context of employment discrimination claims (under both Title VII and the ADEA)
such as those here, courts apply the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973), to summary judgment evaluations. See Pardo-Kronemann v.
Jackson, 541 F. Supp. 2d 210, 214 (D.D.C. 2008) (Title VII case); Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 140 (2000) (ADEA case). In McDonnell Douglas, the
Supreme Court established that, in discrimination cases, the plaintiff must first bring a prima
facie case of discrimination which the employer may then sufficiently rebut by articulating a
legitimate, non-discriminatory reason for its employment decision. 411 U.S. at 804. The plaintiff
must then have an opportunity to present evidence that the employer’s legitimate reason is
pretext and that the real reason for its decision was discriminatory. Id. at 805.
At the summary judgment stage, the McDonnell Douglas framework dissolves once the
defendant proffers a legitimate reason, and to avoid dismissal “the plaintiff must show that a
reasonable jury could conclude from all of the evidence that the adverse employment decision
was made for a discriminatory reason.” Lathram v. Snow, 336 F.3d 1085, 1088 (D.C. Cir. 2003).
This showing may involve the strength of the plaintiff’s prima facie case2, direct evidence of
2
The Court notes that a court should not decide whether the plaintiff has established a prima facie case at the
summary judgment stage. Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). The defendant
cites Brady for the proposition that we should only ask: “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…?” (Def.’s
Mot. 9.) But the quote from Brady continues: “…and that the employer intentionally discriminated against the
employee on the basis of race, color, religion, sex, or national origin?” 520 F.3d at 494. Thus the question at
summary judgment is broader than the defendant proposes, and courts since Brady have used evidence from the
prima facie case (without deciding whether there is one or not) as well as evidence of pretext to answer it. See
Pardo-Kroneman, 541 F. Supp. 2d at 215-16.
This court reads Brady as broadening rather than narrowing the summary judgment inquiry, because it
allows the plaintiff to build his case from circumstantial evidence of pretext even if he has not initially established a
prima facie case of discrimination. The trial court in Brady had dismissed the plaintiff’s claims, because of a lack of
a prima facie case, without reviewing plaintiff’s evidence of pretext, so the appellate court considered the plaintiff’s
evidence rebutting the proffered legitimate reason before affirming summary judgment. 520 F.3d at 495-96. This
Court will take the same approach, reviewing all of the evidence (of a prima facie case, pretext, and discrimination)
to decide if a jury could infer discriminatory behavior by defendant.
discrimination, and circumstantial evidence indicating that the proffered legitimate reason is
pretext. Pardo-Kronemann, 541 F. Supp. 2d at 215; Waterhouse v. District of Columbia, 298
F.3d 989, 993 (D.C. Cir. 2002).
III. Discussion
a. Discrimination in Non-Selection for the GS-15 Director of Examinations Position
Defendant seeks dismissal of all claims related to the GS-15 Director of Examinations
position, which position plaintiff claims Selectee acquired as a foreseeable result of her
appointment to the GS-14 position at issue in this case. Defendant rightly notes that a plaintiff
must exhaust administrative remedies through the EEOC before bringing a claim to federal court,
Battle v. Rubin, 121 F. Supp. 2d 4, 7 (D.D.C. 2000), and that each alleged incident of
discrimination “constitutes a separate actionable ‘unlawful employment practice.’” Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
The non-selection for the GS-15 position could be seen as a separate claim of
employment discrimination by defendant, but plaintiff recognizes that without a year in a GS-14
position he was ineligible to apply for the GS-15 promotion, did not apply for the promotion, and
therefore could not file a separate EEO complaint for non-selection as to that latter position.
(Pl.’s Opp’n 32 n.4.) He instead argues that Selectee’s promotion to the GS-15 position goes to
the issue of damages, since it was a foreseeable result of her selection to the GS-14 position. Id.
at 32. Plaintiff claims he exhausted administrative remedies because he attempted to amend his
EEO complaint to include the GS-15 issue as soon as he learned of Selectee’s receipt of the
promotion. Id. at 33. However, Selectee’s actual promotion to the position would only be
relevant if plaintiff were alleging discrimination in his non-selection for that position as a
separate complaint, which he does not.
If Selectee’s promotion to the GS-15 position merely goes to the issue of damages in
plaintiff’s GS-14 claims—because, as plaintiff asserts, the promotion was a foreseeable result of
selection to the GS-14 position—then plaintiff should have timely included the issue in his
original EEO complaint. If the promotion was as foreseeable as plaintiff suggests, then it ought
to have been foreseeable to him when he filed his initial complaint, and not only after Selectee’s
receipt of the GS-15 position. Had plaintiff already pleaded the damages issue, then Selectee’s
promotion would have served as substantial support for plaintiff’s theory, but the manifestation
of the theory was not a prerequisite for pleading it in a timely fashion. Thus, the denial of
plaintiff’s second motion to amend in the EEO proceedings means he did not timely bring forth
the GS-15 promotion issue, and may not assert it for the first time in this court. The Court also
notes that, even had plaintiff brought forth the damages issue in a timely fashion, he has not
shown that the GS-15 promotion was a foreseeable result of acquiring the GS-14 position. The
GS-15 job was “a separate competitive position and not in the career ladder of the [GS-14]
Position.” (Def.’s Reply 16.) Plaintiff has failed to exhaust administrative remedies and all
claims of discrimination or damages related to the GS-15 Director of Examinations position must
be dismissed. From this point forward all discussion shall pertain only to the GS-14 Examiner
position.
b. Title VII Race and Gender Discrimination Claims
Plaintiff’s claims of race and sex discrimination hinge on the following facts: that the
head of the Small Business Administration (“SBA”) at the time of plaintiff’s non-selection was
Hispanic, and that the deciding official in the GS-14 hiring decision indicated to an interviewer
that the Selectee, a Hispanic female, “helps our numbers.” (Pl.’s Opp’n 17.) The evidence
produced by plaintiff as to these facts suffices to create a genuine issue of material fact about
race and sex discrimination.
Evidence of racial remarks—even unrelated to the particular employment decision—by a
decision-maker may be probative of pretext and discriminatory intent. Kolstad v. Am. Dental
Ass’n, 108 F.3d 1431, 1437 (D.C. Cir. 1997); see also Price Waterhouse v. Hopkins, 490 U.S.
228, 251 (1989). Discriminatory statements by a decision-maker in the context of the decisional
process are direct evidence of discrimination, and relieve the plaintiff of adherence to the
McDonnell Douglas framework. See, e.g., Thomas v. Nat’l Football League Players Ass’n, 131
F.3d 198, 203-04 (D.C. Cir. 1997); Luciana v. Monfort, Inc., 259 F.3d 906, 909 (8th Cir. 2001)
(“To be entitled to a direct evidence analysis, the plaintiff must present evidence of conduct or
statements by persons involved in the decision-making process that may be viewed as directly
reflecting the alleged discriminatory attitude sufficient to permit the factfinder to infer that that
attitude was more likely than not a motivating factor in the employer’s decision.”)
Under the Luciana definition, the statement attributable to decision-maker Jeff Pierson
that the Selectee “helps our numbers” constitutes direct evidence of discrimination and relieves
plaintiff of his McDonnell Douglas burden. See, e.g., McGinest v. GTE Serv. Corp., 360 F.3d
1103, 1121 (9th Cir. 2004). Pierson made the remark during discussions with the interviewing
officials about the potential candidates for the job in question, indicating his preference for
Selectee. (Pl.’s Opp’n 17.) Thus, even without a showing that defendant’s proffered legitimate
reason is pretext, plaintiff’s Title VII claims survive summary judgment because of the 1991
amendment to Title VII, which holds an employer liable under the act when “the complaining
party demonstrates that race, color, religion, sex, or national origin was a motivating factor for
any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §
2000e-2(m) (emphasis added). Even if a legitimate, non-discriminatory motive factored in as
well, direct evidence of discriminatory intent prompts a mixed-motive analysis and creates a
genuine issue, and the Title VII claims must survive summary judgment.
c. Age Discrimination Claim Under the ADEA
Plaintiff does not provide any direct evidence of age discrimination of the same
magnitude as that of race and gender discrimination, so the Court must revert back to the
McDonnell Douglas analysis to determine if the ADEA claim survives summary judgment. The
Court must decide if a reasonable jury could infer discrimination from “(1) the plaintiff's prima
facie case; (2) any evidence the plaintiff presents to attack the employer's proffered explanations
for its actions; and (3) any further evidence of discrimination that may be available to the
plaintiff (such as independent evidence of discriminatory statements or attitudes on the part of
the employer).” Teneyck v. Omni Shoreham Hotel, 365 F.3d 1139, 1151 (D.C. Cir. 2004).
Though the plaintiff has not produced enough evidence to prove that defendant’s
proffered reasons for the decision are pretext,3 the weak evidence he has provided, combined
with other evidence of discriminatory motive, could persuade a reasonable jury to infer
discrimination. To show pretext, plaintiff provides evidence that defendant knew of Selectee’s
difficulties with a former supervisor, that Selectee may have been pre-selected for the Position,
and that plaintiff’s own qualifications were far superior to Selectee’s. (Pl.’s Opp’n 18-23.)
Though these facts do not prove that plaintiff was “significantly” or “markedly” better qualified
than Selectee, as required for a finding of pretext in Hendricks v. Paulson, 520 F. Supp. 2d 65,
3
Thus, defendant may be able to establish the “same action” affirmative defense at trial if they can prove that
plaintiff still would not have been hired absent any discriminatory motive. See Price Waterhouse v. Hopkins, 490
U.S. 228, 258 (1989); Lewis v. Young Men’s Christian Ass’n, 208 F.3d 1303, 1303 (11th Cir. 2000) (per curiam)
(holding that Price Waterhouse still applies to ADEA cases, though not to Title VII; summary judgment affirmed
where defendant proved by a preponderance of the evidence that it would have made the same employment decision
absent the alleged discrimination). But defendant has not asserted that defense at this time, probably to avoid the
mixed motive analysis that Price Waterhouse compels.
91 (D.D.C. 2007), and other cases cited by defendants, they do lend some support to an overall
inference of discriminatory preference.
Plaintiff’s strongest argument for an inference of age discrimination comes from the
evidence produced concerning interviewers Harry Haskins and Charles Mezger (“the
Interviewers”), who have expressed concern at various times about the old age of many of the
examiners in the Investment Division. (Pl.’s Opp’n 13-16.) Though defendant rightly argues that
“stray remarks,” particularly by non-decision-makers, are not direct evidence of discrimination,
e.g. Beeck v. Fed. Express, 81 F. Supp. 2d 48, 53 (D.D.C. 2000), most of the cases they cite
involve discriminatory remarks by uninvolved co-workers or remarks that have no bearing on the
employment decision in question. Stray remarks may provide evidence of employment
discrimination if there is “a nexus between the stray remark and the adverse employment
decision.” Kalekiristos v. CTF Hotel Mgmt. Corp., 958 F. Supp. 641, 665 (D.D.C. 1997).
The remarks made by the Interviewers did have some nexus to the eventual employment
decision. Rather than arbitrary discriminatory statements made out of spite or in jest, both of the
Interviewers expressed concern about the age of employees in the context of a discussion about
hiring practices. Haskin’s concerns were even made in response to a statement by the then hiring
official that the “Investment Division needed to try to hire younger Examiners.” (Pl.’s Opp’n
13.) Though not directly related to plaintiff’s specific non-selection, discriminatory statements in
discussions about the agency’s hiring practices certainly create a nexus between those statements
and a later hiring decision. It does not matter that the Interviewers were not the deciding officials
in plaintiff’s non-selection, because they certainly had ample opportunity to influence the
decider’s opinion. See Griffin v. Wash. Convention Ctr., 142 F.3d 1308, 1310 (D.C. Cir. 1998);
Haas v. Advo Sys., Inc., 168 F.3d 732, 733-34 (5th Cir. 1999). Plaintiff has shown a genuine issue
of material fact as to age discrimination, and that claim must survive summary judgment.
IV. Conclusion
For the foregoing reasons,
The Motion for Summary Judgment [43] will be GRANTED as to all claims related to
the GS-15 Director of Examinations position,
The Motion for Summary Judgment [43] will be DENIED as to the Title VII and ADEA
claims in plaintiff’s non-selection for the GS-14 position.
A separate order shall issue this date.
Signed by Royce C. Lamberth, United States District Judge, on July 20, 2009.