Perry v. Wilkie ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
RANDY L. PERRY, )
)
Plaintiff, )
)
v. ) Civil Action No. 17-cv-2021 (TSC)
)
ROBERT WILKIE, SECRETARY, )
DEPARTMENT OF VETERANS )
AFFAIRS )
)
Defendant. )
)
MEMORANDUM OPINION
Plaintiff Randy Perry brings four claims against the Department of Veterans Affairs
(“VA”) for: (i) creation of a hostile environment based on discrimination of protected status, in
violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-16 (“Title VII”), and the
Rehabilitation Act of 1973, 29 U.S.C. § 794(a); (ii) creation of a hostile work environment based
on retaliation against protected activities, in violation of Title VII, (iii) failure to promote based
on discrimination against race, in violation of Title VII, and (iv) removal of supervisory authority
based on retaliation against protected activities, in violation of Title VII. (ECF No. 1 (“Compl.”)
¶¶ 12–16.)
Title VII provides that federal employees shall be “made free from any discrimination
based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). The
Rehabilitation Act provides that qualified federal employees with a disability shall not be
“excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance or under any program or
activity conducted by any Executive agency . . . ” 29 U.S.C. § 794(a). Title VII and the
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Rehabilitation Act are applicable to Defendant VA. See 29 U.S.C. § 794(a); 42 U.S.C. § 2000e-
16(a) (citing 5 U.S.C. § 105).
Defendant moves for summary judgment on all four claims. For the reasons set forth
below, Defendant’s motion will be GRANTED with respect to all claims.
I. FACTUAL BACKGROUND
Except where indicated, the following facts are undisputed. Plaintiff began work for
Defendant on March 11, 2013. (Compl. ¶ 2.) Between then and June 2, 2014, he worked as a
GS-14 Program Analyst in the Strategic Management Group (“SMG”) of the Office of Human
Resources & Administration. (Id. ¶¶ 19–20.) On June 2, 2014, he became Deputy Director of
Leadership Development Directorate (“LDD”) at the VA Learning University (“VALU”). (Id. ¶
20.)
Between August 3, 2015 and June 9, 2016 Plaintiff attended the Dwight D. Eisenhower
School for National Security and Resource Strategy (“Eisenhower School”) at the National
Defense University. (Id. ¶¶ 24, 28.) During that time, Dr. George Tanner, the Dean of VALU,
appointed two employees to act in Plaintiff’s stead as co-Deputy Directors of LDD. (Id. ¶ 33.)
Plaintiff alleges, and Defendant disputes, that Tanner offered one of the employees, Rhonda
Carter, the position of LDD Director. (Id. ¶ 34; ECF No. 8 (“Answer”) ¶ 34.)
A. Performance Evaluation
On June 24, 2016, while Plaintiff was on annual leave shortly after graduating from the
Eisenhower School, VALU Deputy Dean Marty Holland emailed Plaintiff to ask for a signed
copy of Plaintiff’s annual performance standards and summary rating. (Compl. ¶¶ 35–37;
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Answer ¶ 37.) Plaintiff claims, and Defendant disputes, that Holland pressured, harassed and
bullied him to sign retroactive performance standards, which “had nothing to do with any of the
work [Plaintiff] performed during the rating period.” (Compl. ¶ 35; Answer ¶ 35.) Plaintiff also
alleges, and Defendant also disputes, that he did not report to Holland during the performance
appraisal period. (Compl. ¶ 36; Answer. ¶ 36.) After receiving the requests from Holland,
Plaintiff informed Tanner, who, according to Plaintiff, did nothing to resolve his concerns.
(Answer ¶ 38; Compl. ¶ 38.)
Plaintiff returned from leave on July 5, 2016 and was assigned to a detail with Jim
Stolarski, Senior Advisor to the Under Secretary for Health, to work on a Critical Staffing
Initiative. (See Compl. ¶ 43.) On July 28, 2016, during a meeting with Holland, Plaintiff refused
to sign Holland’s proposed performance standards. (See ECF No. 24-1 (“Pl. SOF”) ¶ 23.)
Plaintiff proposed to use his 2015 performance standards as a compromise. (Id.) Holland
“allegedly marginalized” Plaintiff’s performance at the Eisenhower School, where his academic
report referred to him as an “outstanding” student. (Id. ¶ 24.)
Plaintiff, concerned with Holland’s review and Tanner’s inaction, on August 2, 2016,
sent a memorandum expressing his concern that “personalities have now become involved in the
workplace” to Pamela Mitchell, Principal Deputy Assistant Secretary for Human Resources. (Id.
¶ 29.) Plaintiff described Holland as “condescending and attitudinal.” (Id. ¶ 27.)
On the same day, Mitchell met with Plaintiff and assigned Terry Mintz, Director of
Administrative Operations, to rate his performance. (Id. ¶ 30.) Mintz was allegedly selected
because Plaintiff’s then-supervisor, Stolarski, could not provide a rating for Plaintiff. (Id.) On
September 9, 2016, Holland emailed Plaintiff to schedule Plaintiff’s mid-year progress review.
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(Id. ¶ 32.) Plaintiff responded that he was on detail and that Holland should refrain from
contacting him any more regarding his FY16 Performance Review. (Id.)
On October 13, 2016, Mitchell notified Plaintiff that his detail was over and that he
would have to return to VALU. (Id. ¶ 33.) She further advised Plaintiff that Holland would sign
his appraisal as the supervisor of record. (Id.) Plaintiff expressed reservations about his return to
VALU but returned as the Deputy Director a month later. (Id. ¶ 35.)
On November 1, 2016, in an email to Plaintiff and Mitchell, Tanner wrote that Plaintiff
had failed to submit his leave requests through his supervisory chain and suggested that Plaintiff
follow protocols to avoid a “perception of impropriety.” (Id. ¶ 37–39.) In a reply to all, Plaintiff
responded that because he was initially at the Eisenhower School and later on temporary detail,
he had submitted his leave through LDD. (Id. ¶ 38.) He also denied that Holland was ever his
supervisor. (Id.) On November 9, in an email to Plaintiff (with Mitchell not copied), Tanner
acknowledged that his original email instruction regarding leave policy was incorrect, but
reiterated that Holland was Plaintiff’s supervisor for performance evaluation. (Id. ¶ 38; ECF No.
23-12 at 2–3.)
On December 9, 2016, Holland gave Plaintiff a “fully successful or better” rating for his
mid-year review. (Pl. SOF ¶ 40.) Four days later, he gave Plaintiff an “Excellent” performance
evaluation. (Id. ¶ 41.) Both ratings were out of cycle, because Holland and Plaintiff did not
agree to the performance standards until July 28, 2016. (Id.)
B. Application of Management Service Officer Position
On October 28, 2016, Plaintiff applied for a Management Service officer (“MSO”)
position at the VA. (Id. ¶ 43.) Laura Akinselure, an Associate Deputy Assistant Secretary and
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the selection official, received a list of five candidates eligible for the position, including
Plaintiff. (Pl. SOF ¶ 45; ECF No. 23-9 (“Def. Ex. 6”) at 43–46.) The candidates were chosen
based on the Best Qualified process, composed of a written application and an interview process.
(Def. Ex. 6 at 43–46.) Both Plaintiff and another candidate, Eric Whitehurst, a black man,
received a score of 47 for their written applications, the highest among all the candidates. (Pl.
SOF ¶ 45.)
The candidates were then interviewed by a three-person panel, composed of Akinselure, a
black woman; Jeff Farrand, a white man; and Barry Brinker, also a white man. (Id. ¶ 46.)
Akinselure interviewed Plaintiff in person, while the other panelists participated by phone. (Id.)
The same questions were asked of each candidate during the first-round interview. (Id. ¶ 50.)
Whitehurst received the highest score of 350; another candidate, Martha Ramirez, received the
second highest score of 312; and Plaintiff received the third highest score of 302. (Id. ¶ 51.)
Each of the three panelists gave higher scores to Whitehurst than to Plaintiff. (Id. ¶ 52.)
Whitehurst received higher scores than Plaintiff for 12 of the 13 questions, and the same scores
for the one remaining question. (See ECF No. 23-10 at 69.)
On December 6, 2016, Plaintiff and Whitehurst were selected for a “meet-and-greet” with
Akinselure and her supervisor, Roy Hurndon, a black man. (See Pl. SOF ¶ 53.) Plaintiff
understood the 30-minute meet-and-greet to be a second-round interview, and claims that while
at the meet-and-greet, Hurndon introduced Whitehurst to the office as the new MSO. (Id. ¶¶ 60–
61.) On December 15, Plaintiff learned that Whitehurst was selected for the position. (Id. ¶ 62.)
Plaintiff claims that he was far more qualified for the MSO position than Whitehurst.
(See, e.g., ECF No. 24 (“Pl. Opp.”) at 32.) He points out that he was chosen to attend the
Eisenhower School, while Whitehurst was not, and alleges that at the time of the selection, he
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was running the largest and most complex portfolio within SMG, while Whitehurst was running
the smallest. (Pl. Opp. at 16, 33.) Plaintiff also claims that two high-ranking officials at SMG,
who had supervised both candidates, found Plaintiff more qualified than Whitehurst, and that
Whitehurst’s expertise in portfolio management does not align with the facility logistics
expertise required for the MSO position. (Id. at 16.) Plaintiff further claims that of the four
positions for which Akinselure did the recruiting between 2014 and 2018, three of the selectees
were black. (Id. at 17.)
C. Reorganization of VALU and Removal of Authority
In early fall 2016, Plaintiff learned that VALU would be disbanded in January 2017, and
Plaintiff’s unit, LDD, would be absorbed into the Health Leadership Talent Institute (“HLTI”).
(Pl. SOF ¶¶ 63–64.) During a meeting with Marty Pellum, who was slated to become Plaintiff’s
direct supervisor at HLTI, Plaintiff learned that he would become Associate Director for Talent
Assessment and supervise two employees. (Id. ¶ 64.) Plaintiff and an Associate Director for
Workforce Planning, who would lead five employees, would directly report to Pellum, who
would supervise the nine employees. (Id. ¶ 65.)
Plaintiff received an official notice on November 9, 2016 that his role would be moved to
HLTI effective January 8, 2017. (Id. ¶ 66.) On December 21, however, Defendant approved a
plan to transfer three workforce planning positions, including Plaintiff’s previously assigned
supervisory position, from HLTI to Human Capital System and Services. (Id. ¶ 67.)
During a meeting with Pellum and HLTI director Denise Deitzen at a workshop in late
January, Plaintiff was informed that Pellum’s division would no longer have two Associate
Directors because of a reduction in staff. (See Pl. SOF ¶ 70.) However, during lunch with
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Pellum on January 31, Plaintiff claims he was not told about the fate of his position and did not
learn until a meeting after lunch that he would not become a supervisor. (Id.) Plaintiff claims
that the public announcement at lunch made him feel humiliated. (See Compl. ¶ 71.)
Plaintiff claims that before the announcement on January 31, Pellum repeatedly assured
him that he would retain his supervisory authority. (Pl. SOF ¶ 82.) Plaintiff was further
reassured by an SF-50 form issued on January 8, 2017, indicating that he would retain his
function as a Supervisory Program Analyst. (Id. ¶ 79.) An updated organizational chart showed
that he would supervise five program specialists. (Id. ¶ 64.)
D. EEO Activities
On October 19, 2016, Plaintiff contacted a counselor at VA’s Office of Resolution
Management (“ORM”) and met with the counselor the next day. (Id. ¶ 34.) On November 1, in
the email in which Tanner allegedly accused Plaintiff of failing to follow leave policy, Tanner
acknowledged Plaintiff’s EEO activities and told him that he had discussed Plaintiff’s ORM case
with an EEO official. (Id. ¶ 35.)
On November 10, 2016, Tanner acknowledged by email that Plaintiff had filed a
grievance with ORM and obtained legal counsel. (Id. ¶ 37.) Plaintiff claims that twelve minutes
later, Tanner emailed Mitchell, trying to impugn Plaintiff’s reputation by suggesting that he was
not working and was “erratic, unfocused, and surly.” (Id.)
Plaintiff felt that his informal complaint was unresolved, and filed a formal complaint on
November 21, 2016, alleging multiple instances of employment discrimination on the basis of
age, disability, and reprisal. (Id. ¶ 39.)
On February 9, 2017, Plaintiff amended his complaint, adding events associated with his
removal from supervisory authority at HLTI. (Pl. SOF ¶ 85.) Plaintiff claimed that after
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learning about his EEO complaint for removal of supervisory authority, his supervisors refused
to correct the situation. (Id. ¶ 88.) He also claims that from February 2017 to September 2018,
before he left for a position at the Transportation Security Agency, Defendant placed him on
multiple details, refused to give him a supervisory position, and neglected to place him under
performance standards or provide appraisals in 2017 and 2018. (Id. ¶ 93.)
On September 18, 2017, Plaintiff received a Report of Investigation from the VA.
(Compl. ¶ 51). On October 2, 2017, he filed this lawsuit. (Pl. SOF ¶ 71.)
II. LEGAL STANDARD
Summary judgment is appropriate when there is no disputed genuine issue of material
fact, and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). A dispute of fact is “genuine” only “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute is “material” only when it
involves facts “that might affect the outcome of the suit under the governing law.” Id. In
determining whether a genuine issue of material fact exists, the court must view the facts in the
light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The moving party “bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits
. . . which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp., 477 U.S. at 323 (internal quotations omitted). In response, the nonmoving party must “go
beyond the pleadings” and identify specific facts which show there is a genuine issue for trial.
Id. at 324. To defeat summary judgment, the nonmovant must “provide evidence that would
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permit a reasonable jury to find [in his favor].” Laningham v. U.S. Navy, 813 F.2d 1236, 1242
(D.C. Cir. 1987) (citations omitted).
In evaluating a motion for summary judgment, “the judge’s function is not . . . to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. The court must “eschew making credibility
determinations” at the summary judgment stage. Czekalski v. Peters, 475 F.3d 360, 363 (D.C.
Cir. 2017). However, “[i]f the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
“[C]onclusory assertions offered without any evidentiary support do not establish a genuine issue
for trial.” Wang v. Wash. Metro. Area Transit Auth., 206 F. Supp. 3d 46, 63 (D.D.C. 2016)
(citing Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999)).
III. ANALYSIS
A. Hostile Environment Based on Discrimination
To prevail on a discriminatory hostile environment claim, Plaintiff must show that
Defendant subjected him to “discriminatory intimidation, ridicule, and insult” that is
“sufficiently severe or pervasive to alter the conditions of his employment and create an abusive
working environment” because of his race, gender, religion, or national origin. Harris v.
Forklift, 510 U.S. 17, 21–22 (1993); see also Park v. Howard Univ., 271 F.3d 904, 906 (D.C.
Cir. 1995). Plaintiff must show that the acts, in combination, were sufficiently severe or
pervasive, and were part of the same actionable hostile work environment practice. See
Singletary v. District of Columbia, 351 F.3d 519, 527 (D.C. Cir. 2003) (citing Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 115, 120 (2002)).
Plaintiff proffers several incidents in support of his claim:
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“(i) offering Ms. Carter the LDD Director GS-15 position at VALU; (ii) planning
to give his billet to a black, female and non-disabled employee in order to make
him vulnerable to a reduction in force (‘RIF’); (iii) pressuring Plaintiff to sign
retroactive performance standards; (iv) having Holland contact him about
performance standards after Ms. Mitchell instructed Holland not to do so; (v)
marginalizing his ‘outstanding’ performance at the Eisenhower School; (vi) failing
to place him in a senior leadership position upon his graduation from the
Eisenhower School; and (vii) placing him in a detail in which the work was not
meaningful and the supervisor was without authority to supervise or rate
employees.”
(Def. MSJ at 27; see also Compl. ¶¶ 77–80.)
Plaintiff’s claim is insufficient for several reasons. First, he has failed to provide
evidentiary support for some of the incidents that form the basis of his claim. See Celotex Corp.,
477 U.S. at 324 (holding that the mere pleadings themselves are insufficient to oppose a
summary judgment motion). For example, Plaintiff did not proffer any fact in support of his
claim that Defendant planned to give his “billet” 1 to another employee to make Plaintiff
vulnerable for the RIF. Nor did Plaintiff provide any evidentiary support for his claim that
Mitchell instructed Holland not to contact Plaintiff about signing the retroactive performance
evaluation. While it is possible that Mitchell might have instructed Holland not to pressure
Plaintiff to sign retroactive evaluation, the email correspondence provided by Plaintiff does not
support such an inference. It shows only that Mitchell asked Terry Mintz to step in to do
Plaintiff’s performance evaluation during his detail with Stolarski. (See, e.g., Def. MSJ at 5; Pl.
Opp. at 7.) Plaintiff has not adduced any evidence suggesting that Mitchell specifically
instructed Holland not to contact Plaintiff.
Second, Plaintiff fails to articulate a nexus between any discriminatory animus and the
seven alleged incidents described above. Title VII does not prohibit all forms of workplace
1
The court interprets this to refer to his job.
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harassment, only those related to discrimination on the basis of protected status. See Stewart v.
Ashcroft, 352 F.3d 422, 428 (D.C. Cir. 2003). A reviewing court will exclude an incident if it
“had no relation to the other acts . . . or for some other reason . . . was no longer part of the same
hostile environment claim.” See Baird v. Gotbaum, 662 F.3d 1246, 1251 (D.C. Cir. 2011)
(quoting Morgan, 536 U.S. at 118). Here, Plaintiff provides no evidence that Carter was offered
the LDD Director position because of her race. 2 Similarly, assuming that Holland pressured
Plaintiff to sign retroactive performance standards, Plaintiff offers no facts suggesting that the
action was motivated by discriminatory intent rather than a personality conflict. (See, e.g., ECF
No. 23-4 at 33–34.) Likewise, even if Holland sought to marginalize Plaintiff’s performance at
the Eisenhower School, Plaintiff does not point to any evidence that Holland’s action was
motivated by discriminatory animus. In addition, while it might be reasonable for Plaintiff to
expect promotion or advancement after graduating from the Eisenhower School, he does not
articulate any connection between his non-promotion and any unlawful discrimination. 3 Finally,
Plaintiff proffers no evidence to support his claim that he lost his supervisory authority because
of Defendant’s unlawful discrimination against him. (Compl. ¶ 96.)
Because Plaintiff’s hostile work environment claim lacks evidentiary support or any
nexus with discrimination against a protected status, Defendant’s motion for summary judgment
with respect to this claim will be GRANTED.
2
Moreover, “[c]omments made outside of the employee’s presence are generally not actionable
as the basis for a hostile work environment claim.” Bergbauer v. Mabus, 934 F. Supp. 2d 55, 91
(D.D.C. 2013).
3
To the extent that another candidate was chosen over him for the MSO position, Plaintiff does
not rely on this incident to support his hostile work environment claim, and the court will reject
his failure-to-promote claim. (See Part C, infra.)
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B. Hostile Environment Based on Retaliation
To prevail on a retaliatory hostile environment claim, Plaintiff must satisfy the same
severe-or-pervasive standard under a discriminatory hostile environment claim. See Hussain v.
Nicholson, 435 F.3d 359, 367 (D.C. Cir. 2006) (citing Harris, 510 U.S. at 21–22). The actions
giving rise to the claim must collectively establish a hostile environment that is sufficiently
severe or pervasive, and must be sufficiently connected to each other to be part of the same
unlawful employment practice. See Baird, 662 F.3d at 1253 (citing Harris, 510 U.S. at 21;
Morgan, 536 U.S. at 115). In reviewing the claim, the court focuses on such factors as
“frequency of the discriminatory conduct; its severity; whether it was threatening and
humiliating, or a mere offensive utterance; and whether it unreasonably interfere[d] with an
employee’s work performance.” Byrd v. Vilsack, 931 F. Supp. 2d 27, 46 (D.D.C. 2013) (quoting
Harris, 510 U.S. at 23).
Plaintiff alleges two instances of retaliatory action. First, that Tanner tried to damage his
reputation for integrity by emailing Mitchell accusing Plaintiff of disregarding the proper
procedure for requesting leave. (Compl. ¶ 85.) Second, Plaintiff alleges that Holland lowered
his performance rating to “Excellent” despite his receiving an “Outstanding” rating at the
Eisenhower School. (Id.)
To prevail on a hostile work environment claim, a plaintiff cannot rely on “an array of
unrelated discriminatory or retaliatory acts.” Ware v. Hyatt Corp., 80 F. Supp. 3d 218, 231
(D.D.C. 2015) (internal quotation marks omitted) (citing Baird, 662 F.3d at 1252); see also
Mason v. Geithner, 811 F. Supp. 2d 128, 210 (2011) (granting summary judgment where
plaintiff “compil[ed] a laundry list of employment actions and lump[ed] them together under the
umbrella of a hostile work environment” without showing the actions to be “related in time or
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type”). Here, the two actions upon which Plaintiff relies (the email from Tanner and the
performance rating by Holland) are unrelated in time or type. They were taken by two different
supervisors more than a month apart. Moreover, one action concerned leave policy and another
concerned performance evaluation. The court finds no basis to conclude that they are part of the
same unlawful employment practice. Cf. Baird, 662 F.3d at 1252; Mason, 811 F. Supp at 210.
Second, a reasonable trier of fact could not find that Tanner’s action (emailing about the
leave policy) and Holland’s action (lowered performance evaluation) were “sufficiently severe or
pervasive.” Tanner’s use of the phrase “perception of impropriety” does not rise to the level of
blame and accusation. And the fact that Mitchell was copied does not increase the severity of the
email, half of which was devoted to discussing the grievance issue with Plaintiff. Given her role
in Human Resources, it is not surprising that Mitchell would be included in the message. At
bottom, Tanner’s email reflects the kind of work-related actions that courts routinely reject in
hostile environment cases, see Wade v. District of Columbia, 780 F. Supp. 2d 1, 19 (2011)
(collecting cases), even when the actions amount to “unjust criticism” or a “manufactured
performance issue,” see, e.g., id.; Richard v. Bell Atl. Corp., 209 F. Supp. 2d 23, 35 (D.D.C.
2002). The same is true of Holland’s performance evaluation. Even if Holland lowered
Plaintiff’s performance evaluation for a retaliatory purpose, that is an insufficient basis for a
hostile environment claim.
Third, Plaintiff’s allegation against Holland is undermined by a lack of causal connection
between Plaintiff’s EEO activity and his performance evaluation. While the temporal proximity
between Tanner’s email and Tanner’s acknowledgment of Plaintiff’s EEO activity supports the
causal connection for Tanner, cf. Wade, 780 F. Supp. 2d at 20, Plaintiff proffers no specific fact
to establish a link between Holland’s performance evaluation and Holland’s awareness of
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Plaintiff’s EEO activity, let alone a causal link. In fact, Plaintiff has not shown that Holland
even knew about his EEO activity. 4 Because Plaintiff’s allegations fail to establish an actionable
hostile environment claim based on retaliation, Defendant’s motion for summary judgment on
this claim will be GRANTED.
C. Failure to Promote Based on Discrimination
Under McDonnell Douglas v. Green, 411 U.S. 792 (1973), the plaintiff bears the burden
of establishing a prima facie case of discrimination, which requires a showing that plaintiff is a
member of a protected class and suffered from an adverse employment action that gives rise to
an inference of discrimination. See Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015).
The burden then shifts to the defendant to establish a legitimate reason for the adverse action.
See Holcomb v. Powell, 433 F.3d 889, 895–96 (D.C. Cir. 2006).
The D.C. Circuit has shifted away from the prima facie analysis, however, which it
deems to be “almost always irrelevant” once the employer puts forth a legitimate reason for the
action. Patel v. Shinseki, 930 F. Supp. 2d 116, 119 (D.D.C. 2013) (quoting Brady v. Office of the
Sgt. at Arms, 520 F.3d 490, 493–94 (D.C. Cir. 2008). The central question, instead, is whether
the employee has produced enough 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 [the protected class].” See Patel, 930 F.
Supp. 2d at 119 (quoting Brady, 520 F.3d at 494); see also Walker, 798 F.3d at 1091. To
establish liability under this analysis, a plaintiff may pursue a single-motive case by showing
4
Plaintiff’s allegation also fails to establish the requisite “but-for” causation required for
retaliatory claims. See Miles v. Kerry, 961 F. Supp. 2d 272, 293 (D.D.C. 2013); see also infra
Part III(D).
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race was the sole reason for their non-selection, or they may pursue a mixed-motive case by
showing that race was one of the factors for their non-selection. See Washington v. Chao, 577 F.
Supp. 2d 27, 39 (D.D.C. 2008) (citing Ginger v. District of Columbia, 527 F.3d 1340, 1345
(D.C. Cir. 2008)). In evaluating a plaintiff’s claim, the court reviews all categories of
evidence—prima facie, pretext and any other. See Jones, 557 F.3d at 679; Patel, 830 F. Supp. 2d
at 119.
Here, Plaintiff alleges that he was not selected for the MSO position because of his race.
(Compl. ¶ 91.) He contends that he was more qualified than the selectee, Whitehurst, because he
attended the Eisenhower School, had prior GS management experience, led a larger and more
complex work unit, and because his former supervisor recommended him over Whitehurst. (Id.
¶¶ 60–63.) He also alleges that before he and Whitehurst attended the meet-and-greet, the
selection official (Hurndon) walked Whitehurst through the office and introduced him to other
employees as the new MSO. (Id. ¶ 58.)
1. Legitimate Reason
Defendant must show a legitimate, non-discriminatory reason for Plaintiff’s non-
selection. See Kirshnan v. Foxx, 177 F. Supp. 3d 496, 506 (D.D.C. 2016); see also Aka v. Wash.
Hosp. Ctr., 156 F.3d 1284, 1288–89 (D.C. Cir.1998) (en banc) (stating that the employer’s
burden is one of production, not persuasion). Evidence in the record shows that Plaintiff and
Whitehurst tied for the highest score on the written portion of the application, but Whitehurst
received the highest score in the interview process, while Plaintiff received the third-highest
score. (See ECF No. 23-10 at 68; Def. MSJ at 11.) Whitehurst received higher scores than
Plaintiff from each of the three interviewers, and for 12 of the 13 questions, and the same score
15
as Plaintiff for the one remaining question. (See ECF No. 23-10 at 69.) Inferior scores in an
application scoring process is a legitimate reason for non-selection. See Kirshnan v. Foxx, 177
F. Supp. 3d 496, 506 (D.D.C. 2016). The court therefore finds that Defendant has satisfied its
burden of production to show the existence of a legitimate, non-discriminatory reason for
selecting another candidate.
2. Pretext
Because Defendant has asserted a nondiscriminatory reason for non-selection, the burden
shifts to Plaintiff to show that the reason is pretextual. The question here is: “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 [the protected characteristic]?” Brady, 520 F.3d at 494.
Plaintiff argues that the fact that he is white and that Hurndon, Akinselure, and
Whitehurst are all black supports his racial discrimination claim. (See Compl. ¶ 57; Pl. Opp. at
34.) But this fact, standing alone, is insufficient to support a finding of pretextual discrimination,
particularly when the two other interviewers who participated in the first-round interview by
phone were both white, and gave Whitehurst higher scores. (See ECF No. 23-10 at 68; Def.
MSJ at 5.)
Plaintiff argues bias in the selection process because Hurndon walked Whitehurst through
the office before the December 8, 2016 meet-and-greet and introduced him to other employees as
the new MSO. (See Compl. ¶ 58; ECF No. 24-10, at 18.) While Defendant denies that the event
happened, even assuming it did, Plaintiff does not articulate how it supports his racial
discrimination claim. Even if the court infers that Hurndon had already decided to select
16
Whitehurst before the second-round interview, it does not follow that that decision was a result
of racial bias, especially given that at that point Whitehurst had higher scores than Plaintiff.
Similarly, Plaintiff provides insufficient evidence for his claim that he is “far superior”
than the selectee. Summary judgment is properly granted if Plaintiff cannot provide enough
evidence to show that he presents “stark superiority” over the selectee. Stewart, 353 F.3d at 429
(citing Aka, 156 F.3d at 1296); Kirshnan, 177 F. Supp. 3d at 506 (quoting Singleton v. Potter,
402 F. Supp. 2d 12, 31 (D.D.C. 2005) (“Discrimination will not be inferred from a comparison of
candidate qualifications absent a showing that plaintiff’s qualifications were far superior to the
successful candidate’s.”) (emphasis in original).
Plaintiff argues that too much weight was given to the application and interview, at the
expense of considering his qualifications. But defendant set up a two-round interview process to
evaluate the candidates’ qualifications and thus it is reasonable to infer that Defendant found the
interviews to be an important part of its evaluation of the candidates’ qualifications. Given that
inference, the court will not “second guess an employer’s personnel decision” in conducting the
selection process. Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996).
Because interviews were evidently a central part of the evaluative process, and because the
selectee did better in the initial interview than Plaintiff, Plaintiff’s claim that he is “far superior”
than the other candidates lacks merit.
Because Plaintiff identifies no concrete discriminatory pretext, the court will GRANT
Defendant’s motion for summary judgment with respect to this claim.
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D. Removal from Supervisory Authority Based on Retaliation
In a retaliation claim, “the plaintiff generally must establish that he or she suffered (i) a
materially adverse action (ii) because he or she had brought or threatened to bring a
discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1198 (D.C. Cir. 2008). Unlike a
discrimination claim under Title VII, however, “Title VII retaliation claims ultimately require
proof that the desire to retaliate was the ‘but-for’ cause of the challenged action.” Miles v. Kerry,
961 F. Supp. 2d 272, 293 (D.D.C. 2013) (citing Univ. of Tx. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 360 (2013).
Here, the first prong is easily met. There is no dispute that Plaintiff lost his supervisory
role after he was reassigned from LDD to HLTI, (see Def. MSJ at 9; Compl. ¶ 95), and
“withdrawing an employee’s supervisory duties constitutes an adverse employment action.”
Stewart, 352 F.3d at 427 (citing Burke v. Gould, 286 F.3d 513, 522 (D.C. Cir. 2002)).
The second prong, however, is not met. Plaintiff argues that Defendant removed his
supervisory authority in retaliation for his EEO activities. (See Pl. Opp. at 36–38.) But there is
no evidence in the record suggesting that Plaintiff’s EEO activities were the but-for cause. To
the contrary, the record indicates that Plaintiff lost his supervisory authority due to a structural
reorganization, which included the removal of not just his position but two others as well. 5 (Def.
MSJ at 14.) In addition, the record does not suggest that Pellum or Tanner ordered, proposed, or
initiated the reassignment. In light of the lack of evidentiary support for Plaintiff’s assertions,
Defendant’s motion for summary judgment with respect to this claim will be GRANTED.
5
To the extent that Plaintiff is arguing that the reassignment of the positions itself was
retaliatory, he has provided no support for this argument, and the court need not address it.
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IV. CONCLUSION
For the reasons set forth above, the Defendant’s motion for summary judgment will be
GRANTED in full.
A corresponding Order will issue separately.
Date: April 12, 2020
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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