Hopkins v. James ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________
)
WILLIAM HOPKINS, )
)
Plaintiff, )
)
v. ) Civil Action No. 04-1591 (RWR)
)
KATHIE A. WHIPPLE, )
Director, Office of )
Personnel Management1 )
)
Defendant. )
____________________________ )
MEMORANDUM OPINION
Plaintiff William Hopkins filed this lawsuit against the
Director of the Office of Personnel Management (“OPM”) alleging
that OPM discriminated against him based on his national origin
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., and based on his age in violation of the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq., by not scoring Hopkins as high as he believed he should
have been scored on the certificate of eligibles that accompanied
Hopkins’ application for a position of Russian interpreter with
the United States Department of State. Hopkins also claims that
defendant’s selection process has a disparate impact upon people
of advanced age and people who share his national origin. OPM
moves for summary judgment on the claims of national origin and
1
Kathie A. Whipple is substituted as the defendant under
Fed. R. Civ. P. 29(d).
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age discrimination in scoring because the State Department
withdrew the vacancy announcement and did not hire anyone to fill
the position Hopkins sought, and moves to dismiss the disparate
impact claim arguing that Hopkins failed to exhaust his
administrative remedies. Because Hopkins neither presents a
prima facie case of discrimination nor rebuts as pretextual OPM’s
neutral rationale for not manually adjusting Hopkins’ score, and
because Hopkins did not satisfy administrative prerequisites with
respect to his disparate impact claim, the defendant’s motion to
dismiss and for summary judgment will be granted.
BACKGROUND
Hopkins, a U.S. native, was a resident of the District of
Columbia who was approximately 60 years of age when the events at
issue occurred. (Compl. at ¶¶ 5, 6.) As of July 2002, Hopkins
had interpreted Russian for nine years in consecutive and
simultaneous nodes for Presidents and Secretaries of State. In
addition, for 20 years before that, Hopkins interpreted Russian
for various United States arms negotiators, and he was the
personal interpreter of the United States ambassador in Moscow
for two years. (Compl. at ¶ 6.)
In July 2002, the State Department asked OPM to refer
eligible applications for four Interpreter positions in languages
including French, German, Russian, and Spanish. (Def.’s Stmt. of
Material Facts Not in Dispute (“Def.’s Stmt.”) at ¶ 1.) Hopkins
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received an e-mail from an employee of the State Department’s
Office of Language Services stating that the Office of Language
Services was recruiting a staff Russian interpreter, and inviting
Hopkins to apply for the position. (Compl. at ¶ 9.) Hopkins
replied to the e-mail, and shortly thereafter received an
official announcement via fax. (Compl. at ¶ 10.) The
announcement included a questionnaire containing 17 questions.
Hopkins applied for the position at both the grade GS-13 and
grade GS-14 levels, and OPM confirmed that it had received
Hopkins’ application. OPM’s automated staffing system evaluated
applicants’ questionnaire responses and generated a numeric
rating for the applicants. (Def.’s Stmt. at ¶ 3.) OPM staff
examined the top scoring applicants’ application materials and
compared them to objective benchmarks to ensure the accuracy of
the automated staffing systems’ rankings, and to ensure that the
applicants’ self-assessments about their ability to interpret
Russian were substantiated. (See Def.’s Mem. of P. & A. in Supp.
of its Mot. to Dismiss and for Summ. J. at 10-11.) Later, OPM
informed Hopkins that his application would be considered under
open competition examining procedures, and that he had been found
to be qualified for the position he sought based upon OPM’s
review of his application. (Compl. at ¶ 13.)
Hopkins was one of 29 applicants to apply for the Russian
Interpreter position (Def.’s Stmt. at ¶ 5), and one of
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11 candidates whose application materials OPM forwarded to the
State Department. His score was 92 out of 100, which fell in the
category of well-qualified. (Def.’s Stmt. at ¶ 7.) However,
Hopkins was not interviewed for the position because the State
Department decided to interview only the top four scoring
candidates applying for the position at the GS-13 grade, and his
name was not listed as one of the top four scoring candidates.
(Pl.’s Resp. to Def.’s Mot. (“Pl.’s Resp.”) Ex. 3, Sprague Aff.
at 1-2, April 15, 2003.) In December 2002, OPM informed Hopkins
that his application “was among those referred to the selecting
official . . . . However, no selection was made from those
referred.” (Compl. at ¶ 16; Def.’s Stmt. at ¶ 12.) According to
Brenda Saunders Sprague, the Director of the Office of Language
Services, the vacancy announcement was withdrawn “due in large
part to a changed workload and resulting lack of work for Russian
interpreters.” (Def.’s Mot. to Dismiss and for Summ. J. (“Def.’s
Mot.”), Ex. 9, Sprague Aff. ¶ 4, October 27, 2005.)
Hopkins alleges that he was the most qualified applicant
based upon objective standards used among language professionals.
However, Hopkins alleges that he was given a lower rating and
ranking on the OPM certificate of eligibles than he should have
been given because the OPM examiner favored applicants whose
national origin suggested that their native language was Russian.
(Compl. at ¶ 17.) Hopkins contends that the extent and quality
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of his qualifications were superior to that of the other
identified candidates, yet were underrated by the automated
computer ranking and scoring system. According to Hopkins, the
OPM examiner who reviewed his application should have realized
that the computer generated ratings for other applicants were
over-inflated. He also claims that the OPM examiner made
subjective determinations that had a disproportionate impact on
people who were not native Russian speakers because the reviewing
official subjectively over-inflated the scores for native Russian
speakers. As a result, he says, two thirds of the top-ranking
candidates were people who had been educated in the Soviet Union.
(Compl. at ¶¶ 18-19, 22.) According to Hopkins, the OPM examiner
should have changed or adjusted the rankings when he reviewed the
top scoring applicants’ application materials to account for
Hopkins’ superior qualifications, but did not do so. Hopkins
also alleges that he was considerably older than the applicants
that OPM rated as the top three scorers. (Compl. at ¶ 20.)
Plaintiff filed an administrative complaint of
discrimination, and OPM ultimately issued a final order denying
the complaint. (Compl. at ¶ 22.) Hopkins then filed this
action, and OPM moved for summary judgment on the claims of
national origin and age discrimination in scoring in the
complaint’s first and second causes of action, and dismissal of
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the disparate impact claim in the complaint’s third cause of
action.
DISCUSSION
I. DISCRIMINATORY SCORING
“Summary judgment is appropriate when the pleadings and the
evidence demonstrate that ‘that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Feirson v. Dist. of Columbia, 506
F.3d 1063, 1066 (D.C. Cir. 2007) (quoting Fed. R. Civ. P. 56(c));
see also Nails v. England, 311 F. Supp. 2d 116, 121 (D.D.C.
2004). “Not all alleged factual disputes represent genuine
issues of material fact which may only be resolved by a jury.
Material facts are those that might affect the outcome of the
suit under governing law, and a genuine dispute about material
facts exists if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Hines v. Bair, 594 F.
Supp. 2d 17, 22 (D.D.C. 2009) (quoting Nails, 311 F. Supp. 2d at
121) (internal quotations omitted).
“In deciding whether there is a genuine issue of material
fact, the court must assume the truth of all statements proffered
by the non-movant except for conclusory allegations lacking any
factual basis in the record.” Hines, 594 F. Supp. 2d at 22
(quoting Hussain v. Nicholson, 435 F.3d 359, 366 (D.C. Cir. 2006)
(internal quotations omitted). “Summary judgment may be granted
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even if the movant has proffered no evidence, so long as the non-
movant ‘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.’” Dist.
Intown Prop. L.P. v. Dist. of Columbia, 198 F.3d 874, 878 (D.C.
Cir. 1999) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). “Although the burden on the nonmoving party is not
great, it is still required to show specific facts, as opposed to
general allegations, that present a genuine issue worthy of
trial.” Palestine Info. Office v. Shultz, 853 F.2d 932, 944
(D.C. Cir. 1988).
In general, a prima facie claim of discrimination requires a
plaintiff to establish that he is a member of a protected class
and that he was subjected to an adverse employment action which
gives rise to an inference of discrimination. See Mastro v.
Potomac Elec. Power Co., 447 F.3d 843, 850 (D.C. Cir. 2006);
Stella v. Mineta, 284 F.3d 135, 145 (D.C. Cir. 2002); see also
Heasley v. D.C. General Hosp., 180 F. Supp. 2d 158, 168 (D.D.C.
2002) (“To establish [a] prima facie case of disability, age, or
race discrimination, plaintiff must establish, inter alia, that
[his] employer took an adverse employment action against [him]
because of [his] protected status.”). To establish a prima facie
case of discrimination in a job referral case, plaintiff must
show that 1) he belongs to a protected class; 2) he was qualified
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for and requested referral to jobs for which the employer
accepted referrals; 3) he was not referred despite his
qualifications; and 4) after refusing to refer plaintiff, the
referring agency continued to refer individuals to available
positions. See McDonnell Douglas v. Green, 411 U.S. 792, 802
(1973); Mills v. Int’l Brotherhood of Teamsters, 634 F.2d 282,
285 (5th Cir. 1981); Andrews v. Bechtel Power Corp., 780 F.2d
124, 141 (1st Cir. 1985); NAACP Labor Comm. v. Laborers’ Int’l
Union of N. Am., 902 F. Supp. 688, 712 (W.D. Va. 1995); Sharpe v.
Int’l Brotherhood of Electrical Workers, Civil Action No. 85-2564
(JHP), 1990 U.S. Dist. LEXIS 7244, at *28 (D.D.C. April 30,
1990). A plaintiff can establish the necessary inference of
discrimination by showing that a similarly situated person
outside of his protected class requested and received the benefit
he desired, or by showing that an adverse employment action was
“not attributable to ‘the two most common legitimate reasons on
which an employer might rely to reject a job applicant: an
absolute or relative lack of qualifications or the absence of a
vacancy in the job sought.’” George v. Leavitt, 407 F.3d 405,
412 (D.C. Cir. 2005) (quoting Stella, 284 F.3d at 145 (internal
quotations omitted)); see also Cones v. Shalala, 199 F.3d 512,
517 (D.C. Cir. 2000).
In deciding summary judgment motions on Title VII and ADEA
claims, courts apply the burden-shifting framework announced in
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McDonnell Douglas, 411 U.S. at 802-05. See Barnette v. Chertoff,
453 F.3d 513, 515-16 (D.C. Cir. 2006); Hall v. Giant Food, Inc.,
175 F.3d 1074, 1077 (D.C. Cir. 1999) (citing Paquin v. Federal
National Mortgage Ass’n, 119 F.3d 23, 26 (D.C. Cir. 1997)).
Under McDonnell Douglas, if the plaintiff establishes his prima
facie case, then the employer must “produce admissible evidence
that, if believed, would establish that [its] action was
motivated by a legitimate, nondiscriminatory reason.” Royall v.
National Ass’n of Letter Carriers, 548 F.3d 137, 144-45 (D.C.
Cir. 2008) (quoting Teneyck v. Omni Shoreham Hotel, 365 F.3d
1139, 1151 (D.C. Cir. 2004)). The defendant’s burden is one of
production, meaning it does not have to “‘persuade the court that
it was actually motivated by the proffered reasons.’” Barnette,
453 F.3d at 516 (quoting Tex. Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981)). If the defendant meets this
burden of production, the burden-shifting framework disappears,
and a court deciding a summary judgment motion looks to whether a
reasonable jury could infer intentional discrimination or
retaliation from the evidence presented by the plaintiff.
Hopkins fails to establish a prima facie case of
discrimination against OPM. As an initial matter, OPM did refer
Hopkins’ application to the State Department and assigned it a
score of 92, reflecting that he was well qualified for the
position Hopkins sought. (Def.’s Stmt. ¶¶ 7, 10.) This negates
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Hopkins’ implication that OPM constructively prevented him from
being referred to the State Department for an interview. (See,
e.g., Pl.’s Stmt. of Genuine Issues, ¶¶ a(7), b(1).) While
Hopkins alleges that he would have been given the position if he
had been granted an interview with the State Department, the
vacancy announcement was withdrawn “due in large part to a
changed workload and resulting lack of work for Russian
interpreters.” (Sprague Aff. ¶ 4, October 27, 2005.) It was the
State Department that chose not to interview all qualified
applicants, cancelled the vacancy announcement, and chose not to
hire anyone for the position Hopkins sought. (See id. ¶ 3.)
“When a government agency cancels a vacancy announcement and no
one outside the protected class is hired to fill the position,
the plaintiff cannot establish her prima facie case.” Bowie v.
Ashcroft, 283 F. Supp. 2d 25, 31 (D.D.C. 2003) (citing Morgan v.
Federal Home Loan Mortgage Corp., 172 F. Supp. 2d 98, 112-113
(D.D.C. 2001) (holding that no adverse employment action exists
if, when the plaintiff applied, there was no vacancy, or the
position was never filled)). Therefore, Hopkins fails to show
that his failure to obtain a position with the State Department
was attributable to OPM’s decision not to manually adjust his
evaluation score. That is, plaintiff has not shown that OPM
caused the State Department not to interview or hire him. See
Teneyck, 365 F.3d at 1153 (finding judgment as a matter of law
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proper where the plaintiff offered no evidence indicating that
the position for which she applied remained open); Hayslett v.
Perry, 332 F. Supp. 2d 93, 100 (D.D.C. 2004) (finding that the
plaintiff could not establish a prima facie case of employment
discrimination based on non-promotion where the plaintiff lacked
evidence of an available position).
Even if OPM’s failure to beneficially adjust Hopkins’ score
could be viewed as the cause of his not being hired
notwithstanding the vacancy cancellation, OPM presents a neutral
explanation for its evaluation process and its failure to adjust
Hopkins’ score upward which Hopkins does not counter with
evidence permitting any reasonable inference of discrimination.
“Because courts are not superpersonnel departments that reexamine
an entity’s business decisions,” a plaintiff must present
evidence of “stark superiority of credentials over those of the
successful candidates.” Stewart v. Ashcroft, 352 F.3d 422, 429-
30 (D.C. Cir. 2003) (internal quotations omitted); Jackson v.
Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (“in order to
justify an inference of discrimination, the qualifications gap
must be great enough to be inherently indicative of
discrimination.). “This Court will not reexamine governmental
promotion decisions where it appears the Government was faced
with a difficult decision between two qualified candidates.”
Jackson, 496 F.3d at 708. “[T]he Court will not second-guess an
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employer’s personnel decision unless the disparities in
qualifications ‘are so apparent as to virtually jump off the page
and slap [it] in the face.’” Hammond v. Chao, 383 F. Supp. 2d
47, 58 (D.D.C. 2005) (granting government summary judgment
although plaintiff alleged that she had more experience than the
other candidates applying for the position) (quoting Choates v.
Powell, 265 F. Supp. 2d 81, 95 (D.D.C. 2003)). “Even if a court
suspects that a job applicant was ‘victimized by [] poor
selection procedures’ it may not ‘second-guess an employer’s
personnel decision absent demonstrably discriminatory motive.’”
Fischbach v. Dist. of Columbia Dept. of Corrections, 86 F.3d
1180, 1183 (D.C. Cir. 1996) (quoting Milton v. Weinberger, 696
F.2d 94, 100 (D.C. Cir. 1982)).
OPM acknowledged that the top scorers and Hopkins were
experienced and well qualified. For the court to be asked to
judge whether Hopkins’ credentials were starkly superior to those
of the other well-qualified candidates who received higher scores
would likely thrust the court into a role disfavored by Jackson.
However, Hopkins’ evidence reflects a demonstrable absence of
discriminatory motive. While OPM staff may have had discretion
to subjectively alter the candidates’ scores when reviewing the
top scoring applicants’ application materials, the questionnaire
that the applicants completed contained no questions seeking the
applicants’ national origin or age, and Hopkins only speculates
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as to how OPM would deduce that information.2 (See Def.’s Mot.,
Ex. 2; Pl.’s Resp. at 13.) Although the plaintiff asserts that
John T. Mays, the OPM Human Resource Specialist who reviewed the
candidates’ materials, was clearly aware of several imperfect
proxies for the applicants’ national origin, such as where the
applicants were educated or whether the applicants were native
Russian speakers, Mays testified in his deposition that he was
not aware of those proxies, in part because he “didn’t really
look at education,” and instead focused on other factors, such as
work experience. (See Pl.’s Resp. Ex. 8 (“Mays Dep”) at 216-
217.) In addition, Mays measured applicants against external
benchmarks, not against each other, and raised and lowered
applicants’ scores based upon discrepancies between their
application materials and their self-assessed ability to
interpret Russian. (Mays Dep. at 151, 180-182, 191-192.)
Hopkins also argues that he should have been ranked higher than
the top-ranked native Russian-language candidate because of his
2
While the questionnaire asked for the applicants’
citizenship, citizenship and national origin are distinct
concepts. “Title VII forbids discrimination on the basis of
national origin, not of citizenship.” Nyunt v. Tomlinson, 543 F.
Supp. 2d 25, 41 (D.D.C. 2008) (quoting Fortino v. Quasar Co., 950
F.2d 389, 391 (7th Cir. 1991)). In addition, while the job
announcement informed applicants that they would be required to
provide “all biographic information” sought on Form 1203-FX, the
biographic data that Form 1203-FX sought was an applicant’s first
name, middle initial, last name, street address (including city,
state, country, zip code), preferred contact time, and telephone
number. The form did not seek national origin or age data.
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superior experience. However, their scores were close, and two
applicants Hopkins cites nonetheless each possessed a significant
amount of experience interpreting Russian. (Pl.’s Resp. at 10.)
Further, Hopkins acknowledges that a non-native Russian speaker
was the second-highest scoring applicant, receiving a rating of
98.0, placing her in the top three on the certificate of
eligibles and in the State Department’s range of targeted
interviewees. (Pl.’s Resp. at 10-11.) There is no reasonable
factual dispute left, then, for a jury to decide on the claim
that discriminatory scoring deprived Hopkins of a job.
II. DISPARATE IMPACT
OPM moves under Federal Rule of civil Procedure 12(b)(1) to
dismiss Hopkins’ Title VII and ADEA disparate impact claims
contained in the third cause of action in Hopkins’ complaint,
arguing that Hopkins failed to satisfy the jurisdictional
prerequisite of exhausting his administrative remedies. However,
“motions to dismiss for failure to exhaust administrative
remedies are more appropriately analyzed under Rule 12(b)(6)[,]”
which involves failure to state a claim for which relief can be
granted. Marshall v. Honeywell Tech. Solutions, Inc., 536 F.
Supp. 2d 59, 64 n.6 (D.D.C. 2008) (quoting Hazel v. Wash. Metro.
Transit Auth., Civil Action No. 02-1375 (RWR), 2006 WL 2024966,
at *3 (D.D.C. Dec. 4, 2006)). “In order to survive a motion to
dismiss under Rule 12(b)(6), the allegations stated in the
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contested portion of the plaintiff’s complaint ‘must be enough to
raise a right to relief above the speculative level[.]’” Demery
v. Montgomery County, 602 F. Supp. 2d 206, 212 (D.D.C. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
If a plaintiff does not assert sufficient facts to support his
claim, that claim must be dismissed. Demery, 602 F. Supp. 2d
at 212.
A disparate impact claim is distinct from the disparate
treatment claims Hopkins has alleged, and requires distinct
elements of proof. Disparate impact claims arise from employment
practices that are facially neutral in their treatment of
different groups, but that fall more severely on one statutorily
protected group than another in practice, and which a defendant
cannot justify by business necessity. Smith v. City of Jackson,
544 U.S. 228, 241 (2005). If an applicant for federal employment
believes that any practice has discriminated against him on the
basis of national origin or age, he must consult an agency equal
employment opportunity (“EEO”) counselor in an effort to solve
the situation informally. See 29 C.F.R. § 1614.105(a). This
contact with the EEO counselor must occur within 45 days of the
alleged discriminatory incident. See 29 C.F.R. § 1614.105(a)(1).
Alternatively, if the complainant alleges a violation of the
ADEA, the complainant can avoid seeking relief administratively,
and can instead decide to “bring the claim directly to federal
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court, so long as, within 180 days of the allegedly
discriminatory act, he provides the [Equal Employment Opportunity
Commission] with notice of his intent to sue at least 30 days
before commencing suit.” Hunter v. Rice, 531 F. Supp. 2d 185,
190 (D.D.C. 2008) (citing 29 U.S.C. § 633a(c) and (d)). A
defendant bears the burden of proving that a plaintiff failed to
exhaust these administrative requirements. See Colbert v.
Potter, 471 F.3d 158, 165 (D.C. Cir. 2006); Armstrong v. Reno,
172 F. Supp. 2d 11, 20 (D.D.C. 2001) (citing Bowden v. United
States, 106 F.3d 433, 437-38 (D.C. Cir. 1997) and Brown v. Marsh,
777 F.2d 8, 13 (D.C. Cir. 1985)).
Assuming that a disparate impact claim under the ADEA
against a federal employer is legally cognizable,3 Hopkins did
not comply with the administrative requirements under the ADEA or
Title VII before filing a lawsuit alleging disparate impact.
Hopkins’ administrative complaint of discrimination did not raise
a disparate impact claim against the OPM’s employment policies,
and there was no discussion of a disparate impact claim in the
counselor’s report or the investigative record. Hopkins’
administrative complaint, filed with OPM on December 31, 2002
states:
3
See Aliotta v. Bair, 576 F. Supp. 2d 113, 127 n.7 (D.D.C.
2008) (noting that “[m]embers of the D.C. District Court remain
divided on the issue” of whether a plaintiff may allege disparate
impact under the ADEA against a federal employer.)
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It is my position that I should have been selected and
employed for one of the two positions for which I
applied. Because I was discriminated against in the
selection process, I contend I should be compensated
with back pay and other economic losses I suffered as a
result of the discriminatory conduct in the selection
process. I also seek compensatory damages for injury
to my professional reputation and for psychological and
emotional distress I have suffered. In the
alternative, I should be ranked and listed among the
top 3 candidates on a new referral to the Department of
State and compensated with back pay and other economic
losses I have suffered as a result of the
discriminatory conduct by OPM. Prior to such a
determination, I also seek an explanation of and the
criteria used for assigning each candidate’s
certification ranking, as well as the ranking of the
candidates as to the two positions.
(See Def.’s Mot., Ex. 15B.) Specificity in a charge is not a
“mere technicality” and compliance with all administrative
procedures and deadlines is mandatory. Park v. Howard Univ., 71
F.3d 904, 908-909 (D.C. Cir. 1995) (finding that a Title VII
plaintiff had not exhausted her administrative remedies because
her administrative complaint did not contain the allegation of
hostile work environment that appeared in the court complaint);
see also Lane v. Hilbert, Civil Action No. 03-5309, 2004 U.S.
App. LEXIS 9397, at *2 (D.C. Cir. May 12, 2004) (affirming
district court’s dismissal of plaintiff’s claim where plaintiff’s
district court complaint alleged disparate treatment on account
of sex, but her administrative complaint did not). The
allegations in an administrative complaint must be sufficiently
specific to give a federal agency the opportunity to handle the
matter internally, and Hopkins’ allegations did not provide a
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sufficient basis upon which the agency would know that he was
alleging that the ranking process itself resulted in a disparate
impact upon people within certain classes of age and national
origin. Brown, 777 F.2d at 14; Park, 71 F.3d at 907. In
addition, the plaintiff does not present any evidence that he
provided the advance notice of his intent to sue concerning
disparate impact as is required by 29 U.S.C. § 633a(c) and (d).
CONCLUSION
Hopkins does not present a prima facie case that OPM scored
his application discriminatorily or demonstrate that the OPM’s
stated rationale for not manually adjusting Hopkins’ score was
pretext. Hopkins also did not pursue his administrative remedies
with respect to his disparate impact claim. Thus, the
defendant’s motion to dismiss and for summary judgment will be
granted. An appropriate Order accompanies this Memorandum
Opinion.
SIGNED this 30th day of June, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge