Tumblin v. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TERESA TUMBLIN,
Plaintiff,
v. No. 19-cv-2204 ZMF
MERRICK GARLAND, ATTORNEY
GENERAL OF THE UNITED STATES,
Defendant.
MEMORANDUM OPINION
Plaintiff Teresa Tumblin brings this action against Attorney General Merrick Garland 1 for
violating the antiretaliation provision of Title VII of the Civil Rights Act of 1964 (“Title VII”),
codified at 42 U.S.C. § 2000e3(a). Tumblin, an employee of the Federal Bureau of Investigation
(“FBI”), alleges that Defendant did not select her for positions in December 2015 and February
2016 in retaliation for Tumblin’s complaints that she was subjected to a hostile work environment.
Pending before the Court is Defendant’s Motion for Summary Judgment, which the Court will
GRANT.
1
Attorney General Garland is the proper defendant in this case. See 42 U.S.C. § 2000e-16(c).
1
I. BACKGROUND
A. Factual Background 2
FBI Employment and Prior Protected Activity
On June 8, 2008, Tumblin began working as a Research Analyst for the FBI. See Pl.’s
Resp. to Def.’s Statement of Material Facts Not in Dispute (“Pl.’s Resp.”) 26, ECF No. 38. In
2009, Tumblin asserted her first Equal Employment Opportunity (“EEO”) claim, which was
resolved through mediation. See Second Am. Compl. 4, ECF No. 15. In March 2015, Tumblin
filed her second EEO complaint alleging a retaliatory hostile work environment. See Pl.’s Mem.
in Opp’n to Def.’s Partial Mot. to Dismiss, Ex. 2, Compl. of Discrimination 2–4, ECF No. 12-3.
On July 11, 2019, the Department of Justice’s Complaint Adjudication Office determined that the
FBI did not subject Tumblin to a retaliatory hostile work environment. See Def.’s Mot. for Summ.
J., Ex. 2, FBI-2015-00091 15–17, ECF No. 37-4.
December 2015: Denial of Reassignment to the White House Special Events
Handling Unit
Tumblin’s first claim concerns the FBI’s National Name Check Program (the “Program”),
which conducts name checks for over fifty federal partners for various purposes. See Pl.’s Resp.
at 32. Name check work consists of two functions: name searches and dissemination. See id. Name
search technicians, generally at the GS-9 level, 3 conduct name searches. See id. Other employees
2
Tumblin failed to fully comply with Local Civil Rule 7(h)(1) and the Court’s Standing Order,
which required her to “submit a statement enumerating all material facts which [she] contends are
genuinely disputed” and to “furnish precise citations to the portions of the record on which [she]
rel[ies].” Standing Order in Civil Cases 6, ECF No. 33; see LCvR 7(h)(1). As such, the Court will
accept as true facts in Defendant’s statement of facts that are uncontested by Plaintiff and
uncontroverted by the evidence. See Burke v. Gould, 286 F.3d 513, 517–18 (D.C. Cir. 2002).
3
The FBI largely pays employees on the General Schedule (“GS”) pay scale, which has fifteen
levels. See Salary Table 2022-GS, OPM.GOV, https://www.opm.gov/policy-data-oversight/pay-
leave/salaries-wages/salary-tables/pdf/2022/GS.pdf.
2
conduct dissemination wherein they analyze the name check results and draft reports. See id.Dissemination requires analytical skills and is more challenging than name checking. See id. at 33.
In December 2015, the FBI consolidated the name search teams within the Program into
the White House Special Events Handling Unit (the “Unit”). See id.; Second Am. Compl. at 8. The
new teams within the Unit would conduct name searches, not dissemination. See Second Am.
Compl. at 8. On December 8, 2015, Tumblin expressed interest in assignment to the Unit. See
Def.’s Mot. for Summ. J., Ex. 7, Email from James M. Gobble to James P. Flanigan (“Gobble
Email”) 2, ECF No. 37-9. On December 21, 2015, Defendant formally announced the creation of
the Unit. See Def.’s Mot. for Summ. J., Ex. 3, Email from Brian Oxendine 57, ECF No. 37-5.
Tumblin sought a supervisory role within the new Unit, see Gobble Email at 2; Def.’s Mot. for
Summ. J., Ex. 5, Dep. of Teresa Tumblin (“Tumblin Dep.”) 24, ECF No. 37-7, but no such position
existed, see Def.’s Mot. for Summ. J., Ex. 4, Dep. of Brian Oxendine (“Oxendine Dep.”) 134–36,
ECF No. 37-6. In fact, reassignment would not have resulted in a promotion or salary increase.
Pl.’s Resp. at 37.
Assistant Section Chief Brian Oxendine, in consultation with Section Chief Kevin
Donovan, reassigned employees to the Unit. See Def.’s Mot. for Summ. J., Ex. 8, Decl. of Kevin
C. Donovan (“Donovan Decl.”) 8, ECF No. 37-10. Donovan and Oxendine became aware of
Tumblin’s prior EEO activity in early 2015 and late 2015, respectively. See Donovan Decl. at 5;
Def.’s Mot. for Summ. J., Ex. 6, Decl. of Brian Oxendine (“Oxendine Decl.”) 4, ECF No. 37-8.
On December 22, 2015, James P. Flanigan, the Unit Chief of the Unit, announced the assignments
to the Unit. See Def.’s Mot. for Summ. J., Ex. 11, Email from James P. Flanigan (“Flanigan
Email”) 3, ECF No. 37-13. Employees transferred to the Unit were all GS-9s and below. See
Oxendine Dep. at 136. Oxendine did not select Tumblin. See Flanigan Email at 2–3. At the time,
3
Tumblin was a GS-12 research analyst with previous experience in dissemination. See Tumblin
Dep. at 27. Oxendine determined that the FBI needed Tumblin’s skills on the Program’s
dissemination team to reduce a backlog. See Oxendine Dep. at 34–36. Although Tumblin had not
performed dissemination as her primary responsibility for three years, see Pl.’s Resp. at 37, she
was skilled at it, see Tumblin Dep. at 16. Tumblin asserts that the denial of her reassignment
request was in retaliation for her prior EEO activity. See Second Am. Compl. at 16.
March 2016: Non-Selection to Quality Assurance Reviewer Rotational
Program
Tumblin’s second claim concerns work as a Quality Assurance (“QA”) Reviewer. See
Second Am. Compl. at 18–19. In January 2016, the Program’s Quality Resources Management
Unit posted a vacancy for a one-year detail on the QA Team. See Def.’s Mot. for Summ. J., Ex.
10, Email from Brian Oxendine (“Oxendine Email”) 2–3, ECF No. 37-12. Applicants had to
submit a one-page narrative describing their qualifications and letters of recommendation from a
supervisory research analyst and unit chief. See id. at 3. Mandatory qualifications included: serving
in a current research analyst position; a minimum of two years of experience conducting name
checks; proficiency and experience in conducting dissemination; and a willingness to change or
adjust one’s schedule to meet the QA requirements. See id. Preferred qualifications for the role
included excellent or outstanding quality ratings and a high level of productivity as evaluated by
the section’s metrics. See id.
In February 2016, Tumblin applied for the one-year detail. See Second Am. Compl. at 8.
Selection would not have resulted in a promotion or salary increase. See Pl.’s Resp. at 49. On
March 1, 2016, a panel of four unit chiefs—Ken Strother, Mark Vaughn, Lisa Foster, and Dale
4
Roland—recommended the selection of five QA Reviewers out of nine applicants. 4 See Pl.’s Resp.
at 42. Strother, Vaughn, and Foster were aware of Tumblin’s past EEO activity. See Def.’s Resp.
to Pl.’s Statement of Disputed Material Facts (“Def.’s Resp.”) 30–31, ECF No. 39-1. Roland was
not. See id. at 30; Pl.’s Resp. at 56. The panelists scored the candidates in three areas: subject
matter knowledge; interpersonal ability; and submission content. See Def.’s Mot. for Summ. J.,
Ex. 22, Individual Rating Forms, ECF No. 37-24. Scores were from 0–5, ranging from “Not
Demonstrated” to “Exemplary.” See id. One panelist, Foster, crossed out Tumblin’s score of three
4s and changed it to three 3s. See Mem. of Law in Supp. of Pl.’s Opp’n to Def.’s Mot. for Summ.
J. (“Pl.’s Opp’n”), Ex. 5, Individual Rating Form for Teresa Tumblin (“Tumblin’s Ratings”) 3,
ECF No. 38-5. After the panelists combined their scores, Tumblin ranked seventh out of eight. See
Rotational Board Final Decision at 2. Tumblin received an aggregate score of fifty-seven points.
See id. The top six candidates scored in the seventies. See id.
Following the panelists’ scoring, Donovan re-ranked the candidates based on different
criteria. See Def.’s Mot. for Summ. J., Ex. 15, NNCP QA Rotation Selections 2, ECF No. 37-17.
Donovan gave preference to those who had not previously served as QA reviewers and who had
not recently participated in a rotational program “to enable more analysts to gain experience.” Id.
Once again, Tumblin ranked seventh out of eight. See id. at 3. Tumblin’s placement was in part
informed by her productivity score of .86, which was considered “minimally successful.” Def.’s
Mot. for Summ. J., Ex. 28, Addendum for Achieving Results 2–4, ECF No. 37-30; see Def.’s Mot.
for Summ. J., Ex. 27, Table of Applicants’ Qualifications 2, ECF No. 37-29. Accordingly, Tumblin
4
The panelists eliminated one candidate for not meeting the mandatory qualifications. See Def.’s
Mot. for Summ. J., Ex. 24, Rotational Board Final Decision 2, ECF No. 37-26. The panelists
initially determined that Tumblin also did not meet the mandatory qualifications. See id. However,
Defendant later revised these qualifications, which made Tumblin eligible. See Donovan Decl. at
6–7.
5
did not meet the preferred qualifications for the QA Reviewer position. See Oxendine Email at 2–
3. Donovan’s rankings were also informed by Tumblin’s previous work as a QA Reviewer and
participation in a rotational program; three of the candidates did not have experience in one or both
of these categories. See NNCP QA Rotation Selections at 2.
On March 3, 2016, Donovan extended offers to the top five candidates. See id. at 2–3.
Tumblin did not receive an offer. See id. On January 25, 2017, Defendant selected Tumblin for the
QA Reviewer rotational program to fill a vacancy because she was the next ranked candidate on
the list. See Def.’s Mot. for Summ. J., Ex. 29, Email from Kevin Donovan to Teresa Tumblin 3,
ECF No. 37-31. Tumblin asserts that her initial non-selection was in retaliation for her prior EEO
activity. See Second Am. Compl. at 9.
B. Procedural History
On July 24, 2019, Tumblin filed this suit. See Compl. 12, ECF No. 1. On October 15, 2019,
and March 10, 2020, she filed amended complaints. See Am. Compl., ECF No. 3; Second Am.
Compl. On December 3, 2020, Judge Dabney L. Friedrich dismissed three of the five counts in
Tumblin’s Second Amended Complaint for failure to state a claim. See Mem. Op. 7–13, ECF No.
21. On January 5, 2022, the parties consented to proceed before a U.S. Magistrate Judge for all
purposes. See Min. Order (Jan. 5, 2022). Following discovery, Defendant moved for summary
judgment on the two claims identified above. See Def.’s Mot. for Summ. J. 1, ECF No. 37.
II. LEGAL STANDARD
To succeed on a motion for summary judgment, the moving party must show that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P 56(a). A fact is material if it “might affect the outcome of the suit under
governing law,” and a dispute is genuine “if the evidence is such that a reasonable jury could return
6
a verdict for the nonmoving party.” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the initial
burden of demonstrating that there is no genuine dispute of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the moving party meets this burden, the nonmoving party
must identify “specific facts showing that there is a genuine issue for trial.” Id. at 324 (quoting
Fed. R. Civ. P. 56(e)). In evaluating motions for summary judgment, the Court must review all
evidence in the light most favorable to the nonmoving party and draw all inferences in the
nonmoving party’s favor. See Tolan v. Cotton, 572 U.S. 650, 656–57 (2014). In doing so, the Court
must not assess credibility or weigh the evidence. See Barnett v. PA Consulting Grp., Inc., 715
F.3d 354, 358 (D.C. Cir. 2013). However, the nonmoving party “may not merely point to
unsupported self-serving allegations, but must substantiate his allegations with sufficient probative
evidence[.]” Reed v. City of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir. 2009) (quoting Bass v.
SBC Commc’ns, Inc., 418 F.3d 870, 872–73 (8th Cir. 2005)). A genuine issue for trial must be
supported by affidavits, declarations, or other competent evidence. See Fed. R. Civ. P. 56(c). If the
nonmoving party’s evidence is “merely colorable” or “not significantly probative,” summary
judgment may be granted. Liberty Lobby, 477 U.S. at 249–50.
III. DISCUSSION
Title VII prohibits an employer from retaliating against an employee “because [s]he has
opposed any practice made an unlawful employment practice by [Title VII]” or “made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
[Title VII].” 42 U.S.C. § 2000e-3(a). “The role of the antiretaliation provision is to prevent
employer interference with unfettered access to Title VII’s remedial mechanisms.” Chambers v.
Dist. of Columbia, 35 F.4th 870, 877 (D.C. Cir. 2022) (cleaned up). If a plaintiff cannot present
7
direct evidence of retaliation, the court assesses her claims under the framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).
Under that framework, the employee must first make out a prima facie case of retaliation.
See Iyoha v. Architect of the Capitol, 927 F.3d 561, 566 (D.C. Cir. 2019). To do so, the plaintiff
must show that (1) “[s]he engaged in statutorily protected activity;” (2) “[s]he suffered a materially
adverse action by h[er] employer;” and (3) “a causal link connects the two.” Id. at 574. Next, the
burden shifts to the employer to articulate a legitimate, non-retaliatory reason for its action.
See McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012). In doing so, “the employer must
‘articulate specific reasons for that applicant’s qualifications such as seniority, length of service in
the same position, personal characteristics, general education, technical training, experience in
comparable work or any combination of such criteria.’” Figueroa v. Pompeo, 923 F.3d 1078, 1089
(D.C. Cir. 2019) (quoting Steger v. Gen. Elec. Co., 318 F.3d 1066, 1076 (11th Cir. 2003)) (cleaned
up). If the employer makes this showing, then “the burden-shifting framework disappears.” Carter
v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004). The “central inquiry” then
becomes “whether the plaintiff produced sufficient evidence for a reasonable jury to find that the
employer’s asserted [non-retaliatory] reason was not the actual reason and that the employer
intentionally [retaliated] against the plaintiff on a prohibited basis.” Iyoha, 927 F.3d at 566
(quoting Adeyemi v. Dist. of Columbia, 525 F.3d 1222, 1226 (D.C. Cir. 2008)). In other words, the
employee must demonstrate “pretext.” Jones v. Bernanke, 557 F.3d 670, 679 (D.C. Cir. 2009).
When the employer properly presents a legitimate, non-retaliatory reason for the
challenged action, the district court “need not—and should not—decide whether the plaintiff
actually made out a prima facie case.” Brady v. Off. of Sergeant at Arms, 520 F.3d 490, 494 (D.C.
Cir. 2008). Because Defendant asserted legitimate, non-retaliatory reasons for the challenged
8
actions, the Brady shortcut applies. See Barry v. Haaland, No. 19-cv-3380, 2022 WL 4598518, at
*6 (D.D.C. Sept. 29, 2022). Thus, the Court will proceed to step two. 5 See id.A. Defendant’s Legitimate and Non-Retaliatory Justifications
Four factors are “paramount in the analysis” of whether an employer has met its burden:
(1) the employer must produce admissible evidence; (2) “the factfinder, if it believe[s] the
evidence, must reasonably be able to find that the employer’s action was motivated by a [non-
retaliatory] reason;” (3) the employer’s justification must be “facially credible in light of the
proffered evidence;” and (4) the employer must provide a “clear and reasonably specific
explanation” for its action. Figueroa, 923 F.3d at 1087–88 (cleaned up).
5
Problems abound at step one. Tumblin primarily relies on temporal evidence to establish
causation. See Pl.’s Opp’n at 15–19. She argues that the proximity between her March 2015 EEO
complaint and the December 2015 and March 2016 non-selections establishes but-for causation.
Id. Although “mere temporal proximity may establish causation,” Keys v. Donovan, 37 F. Supp.
3d 368, 372 (D.D.C. 2014), to do so, “the temporal proximity must be very close,” Clark Cnty.
Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (cleaned up). Indeed, numerous courts have found
that three and four-month periods between plaintiffs’ protected activity and adverse employment
actions were insufficient to establish causation based on temporal proximity. See id. at 273–74
(collecting cases).
Tumblin expressed interest in the Unit nine months after her second EEO claim, and the QA
Reviewer role two months after that. See Second Am. Compl. at 4–8. The nine-to-eleven-month
gap between the protected EEO activity and the challenged employment action “is too attenuated
to establish causation based on temporal proximity alone.” Clinton v. Granholm, No. 18-cv-991,
2021 WL 1166737, at *10 (D.D.C. Mar. 26, 2021); see also Woodruff v. Mineta, No. 01-1964,
2005 WL 8178045, at *6 (D.D.C. Jan. 3, 2005) (“[A]s a matter of law, nine months is too much
time between an adverse action and protected activity to establish causation.”), aff’d in part and
rev’d in part on other grounds Woodruff v. Peters, 482 F.3d 521, 528 (D.C. Cir. 2007); Kline v.
Springer, No. 07-0451, 2009 WL 10701432, at *2 (D.D.C. June 29, 2009) (“No reasonable juror
could find retaliation from these facts [where] there was a time lapse of from five to six months
. . . .”). “[Tumblin] has not introduced anything beyond [her] weak evidence of temporal proximity
to show that [Defendant’s] decisions were motivated by a desire to retaliate against [her].” Iyoha,
927 F.3d at 574. Thus, Tumblin likely failed to establish causation. See Clinton, 2021 WL
1166737, at *10.
9
Denial of Reassignment to the Unit
Defendant provided legitimate, non-retaliatory reasons for not reassigning Tumblin.
First, Defendant “has supported its justifications with evidence that the Court may consider
at summary judgment, including deposition testimony [and] supporting emails[.]” Arnoldi v. Bd.
of Trs., 557 F. Supp. 3d 105, 115 (D.D.C. 2021) (cleaned up). This includes sworn statements from
Oxendine, Donovan, and Flanigan, and Oxendine’s deposition testimony. See Oxendine Decl.;
Donovan Decl.; Def.’s Mot. for Summ. J., Ex. 9, Decl. of James P. Flanigan (“Flanigan Decl.”),
ECF No. 37-11; Oxendine Dep. Moreover, Defendant submitted communications related to the
reassignment decision. See Flanigan Email at 3. Tumblin does not dispute admissibility. See Pl.’s
Resp.; Pl.’s Opp’n.
Second, Defendant need only “raise a genuine issue of fact as to whether the employer
intentionally [retaliated] against the employee” to satisfy its step two burden. Figueroa, 923 F.3d
at 1087 (cleaned up). Defendant did so. Oxendine did not consider Tumblin for reassignment
because Tumblin “had good dissemination metrics.” Oxendine Decl. at 6; see Oxendine Dep. at
36. Oxendine’s deposition testimony detailed the Program’s backlog and the decision to not
reassign individuals skilled at dissemination to the name search roles within the Unit. See
Oxendine Dep. at 33–35. Donovan, who consulted Oxendine on which analysts to reassign,
similarly stated that research analysts “who were skilled in dissemination were not chosen . . . as
they were too valuable to [the Program’s] operations performing the more complex dissemination
function.” Donovan Decl. at 8. Flanigan also explained that they “did not select any employees
who had high metrics in dissemination as they were considered more valuable . . . continuing in
that function.” Flanigan Decl. at 6. In fact, the December 22, 2015 email announcing the
reassignments underscored the need to effectively allocate “those who were stronger in the name
10
search function and [those] who provided the greatest potential for dissemination.” Flanigan Email
at 3. These statements accord with Oxendine’s decision to assign Tumblin to the Program’s
dissemination team. See Donovan Decl. at 8. A factfinder reviewing these statements, “emails[,]
and other underlying materials[] could believe the evidence and reasonably conclude that
[Defendant] was motivated by the [nonretaliatory] reasons described [therein].” Clinton, 2021 WL
1166737, at *8.
Third, an employer’s non-retaliatory explanation lacks facial credibility if it is “so
internally inconsistent or implausible on its face that a reasonable factfinder could not credit
it.” Bishopp v. Dist. of Columbia, 788 F.2d 781, 786 (D.C. Cir. 1986). This is not the case here.
Defendant’s numerous statements and documents are internally consistent: Tumblin’s strength in
dissemination precluded her from consideration for the lesser name check position. See Oxendine
Decl. at 6. Moreover, Defendant’s “[non-retaliatory] explanation [was] at least facially credible in
light of the proffered evidence” that the position in the Unit was a lesser role. Clinton, 2021 WL
1166737, at *8 (citing Figueroa, 923 F.3d at 1088); see Oxendine Dep. at 136. In fact, the
employees selected for reassignment were all GS-9 or lower, whereas Tumblin was a GS-12. See
Oxendine Dep. at 136.
Fourth, Defendant’s “explanations were sufficiently clear and specific to allow [Tumblin]
ample opportunity to bring forward evidence to ‘disprove [the] defendant’s reasons.’” Clinton,
2021 WL 1166737, at *9 (quoting Figueroa, 923 F.3d at 1088). Tumblin, a GS-12 research analyst
with valuable dissemination experience, was needed in dissemination to help reduce a backlog of
work. See supra. Tumblin had ample opportunity to claim she was poor at dissemination, that
dissemination did not matter to the FBI, or that there was no backlog. But she did not. Indeed,
Tumblin admitted that she was skilled at dissemination. See Tumblin Dep. at 16.
11
Non-Selection to the QA Reviewer Rotational Program
Defendant provided legitimate, non-retaliatory reasons for not selecting Tumblin for the
QA Reviewer rotational program.
First, Defendant supported its explanation with admissible evidence. See Figueroa, 923
F.3d at 1087. Specifically, Defendant provided Tumblin’s application for the QA Reviewer one-
year detail; the four panelists’ individual scoresheets; communications identifying the vacancies
and announcing the applicants ultimately selected; a rubric explaining productivity metrics for
different grade levels; sworn statements from Foster, Strother, Roland, and Donovan; and
Vaughn’s deposition testimony. 6 Tumblin does not challenge the admissibility of this evidence.
See Pl.’s Resp.; Pl.’s Opp’n.
Second, an employer’s decision to hire the “best applicant” for a position is a legitimate,
non-retaliatory justification. Holcomb v. Powell, 433 F.3d 889, 896 (D.C. Cir. 2006) (cleaned up).
“[T]he evidence would allow a reasonable factfinder to conclude that [Tumblin] was not among
the highest-scoring candidates eligible for the vacant [QA Reviewer] position[s].” Albert v.
Perdue, No. 17-cv-1572, 2019 WL 4575526, at *4 (D.D.C. Sept. 20, 2019) (citing Fischbach v.
D.C. Dep’t of Corr., 86 F.3d 1180, 1182 (D.C. Cir. 1996)); see Individual Rating Forms. In fact,
Tumblin’s productivity metrics were low for her GS level. See Addendum for Achieving Results
6
See Donovan Decl.; Oxendine Email; Def.’s Mot. for Summ. J., Ex. 14, Teresa Tumblin QRMU
Position Application, ECF No. 37-16; NNCP QA Rotation Selections; Def.’s Mot. for Summ. J.,
Ex. 16, Supervisory Research Analyst and Unit Chief Recommendation for Teresa Tumblin, ECF
No. 37-18; Def.’s Mot. for Summ. J., Ex. 17, Rotational Board Final Decision Total, ECF No. 37-
19; Def.’s Mot. for Summ. J., Ex. 20, Decl. of Lisa Foster, ECF No. 37-22; Def.’s Mot. for Summ.
J., Ex. 21, Decl. of Dale A. Roland, ECF No. 37-23; Individual Rating Forms; Def.’s Mot. for
Summ. J., Ex. 23, Dep. of Mark Vaughn, ECF No. 37-25; Rotational Board Final Decision; Def.’s
Mot. for Summ. J., Ex. 25, Email to Mark Vaughn, ECF No. 37-27; Def.’s Mot. for Summ. J., Ex.
26, Email from Kevin Donovan, ECF No. 37-28; Table of Applicants’ Qualifications; Addendum
for Achieving Results.
12
at 2–4; Table of Applicants’ Qualifications at 2. Ultimately, the selecting official chose candidates
who, unlike Tumblin, did not have prior experience as a QA Reviewer. See NNCP QA Rotation
Selections at 2. It was a reasonable business decision for Defendant to prioritize “enabl[ing] more
analysts to gain [this new] experience . . . and then bring that experience back to the operational
units of [the Program].” Id. “Being both reasonable and [non-retaliatory], that is enough to take us
to the third step under McDonnell Douglas[.]” Fischbach, 86 F.3d at 1182.
Third, Defendant’s non-retaliatory explanation was “internally []consistent” on its
face.” Bishopp, 788 F.2d at 786. The selecting official offered the vacant QA Reviewer positions
to the five candidates who received the “highest [] scores.” Albert, 2019 WL 4575526, at *4; see
NNCP QA Rotation Selections at 2–3. Tumblin ranked seventh out of the eight candidates. See
Rotational Board Final Decision at 2. Furthermore, Defendant selected Tumblin for the QA
Reviewer rotational program less than a year later when a vacancy arose because she was the next
ranked candidate on the list. See Email from Kevin Donovan to Teresa Tumblin at 3. “Defendant’s
explanation is therefore legitimate.” Albert, 2019 WL 4575526, at *4 (citing Figueroa, 923 F.3d
at 1088).
Fourth, Defendant produced a “clear and reasonably specific explanation” for its non-
selection of Tumblin. Figueroa, 923 F.3d at 1088 (cleaned up); see Oxendine Email at 2–3.
Defendant set up a selection system with specific rating criteria. See Individual Rating Forms;
Albert, 2019 WL 4575526, at *4. The panelists individually scored the candidates using the same
criteria. See Individual Rating Forms. Subsequently, Donovan re-ranked the candidates. See NNCP
QA Rotation Selections at 2–3. Donovan’s ranking accounted for Tumblin’s “minimally
successful” productivity score. See Donovan Decl. at 11. Once again, Tumblin ranked seventh out
of eight. See NNCP QA Rotation Selections at 3. In announcing the selected QA Reviewers,
13
Donovan provided a breakdown of his rankings and the factors he considered in prioritizing
candidates. See id. at 2–3. “With the scoresheets and precise breakdown [of] the [eight] candidates,
[Tumblin] easily could determine which factors she should challenge at the third prong of the
McDonnell Douglas framework.” Figueroa, 923 F.3d at 1090.
B. Tumblin’s Evidence of Pretext
“The burden now shifts to [Tumblin] to provide sufficient evidence by which a reasonable
jury could find [Defendant’s] stated reason was pretext for [] retaliation.” Albert, 2019 WL
4575526, at *5 (citing Brady, 520 F.3d at 494).
To establish pretext, plaintiffs typically provide evidence of “variant treatment of similarly
situated employees, discriminatory statements by decision makers, [or] irregularities in the stated
reasons for the adverse employment decision.” Bennett v. Solis, 729 F. Supp. 2d 54, 60 (D.D.C.
2010). Alternatively, they may show that the defendant provided “a phony reason” for its non-
selection. Hogan v. Hayden, 406 F. Supp. 3d 32, 46 (D.D.C. 2019) (quoting Pignato v. Am. Trans
Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994)). “It is not enough for the plaintiff to show that a reason
given for a job action is not just, or fair, or sensible.” Hogan, 406 F. Supp. 3d at 46 (quoting
Pignato, 14 F.3d at 349).
Denial of Reassignment to the Unit
The Court is not a “super-personnel department that reexamines an entity’s business
decisions.” Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007) (cleaned up). The selecting
officials, Oxendine and Donovan, articulated that assignments to the Unit were informed by sound
business needs—chiefly, that the Program was experiencing a significant backlog and needed
analysts experienced in dissemination to assist. See Oxendine Dep. at 33–35. Thus, Tumblin’s
prior experience on the name search team, which Plaintiff does not contest, see Def.’s Resp. at 8–
14
9, was irrelevant to the business decision of reassignment, see Oxendine Decl. at 6; Oxendine Dep.
at 36.
Tumblin acknowledges she was a GS-12 research analyst skilled at dissemination. See
Tumblin Dep. at 16, 27. Further, Tumblin admits that reassignment would not have resulted in a
promotion or salary increase. See Pl.’s Resp. at 37. Yet she argues that Defendant’s reasons for
not reassigning her to the Unit were pretextual because she met the qualifications for the role and
had not performed dissemination as her primary function for over three years. See Pl.’s Opp’n at
20. She relies solely on her sworn statement to establish this. See Pl.’s Opp’n, Ex. 11, Decl. of
Teresa Tumblin, ECF No. 38-11. This “meager [evidentiary] showing” of only “her own . . .
testimony” fails to contradict the reasoning behind Defendant’s business decision. Coleman v.
Mayorkas, No. 18-cv-2268, 2021 WL 930263, at *14 (D.D.C. Mar. 11, 2021).
“A plaintiff can establish pretext masking a [retaliatory] motive by presenting ‘evidence
suggesting that the employer treated other employees of a different [group] . . . more favorably in
the same factual circumstances.’” Burley v. Nat’l Passenger Rail Corp., 801 F.3d 290, 301 (D.C.
Cir. 2015) (quoting Brady, 520 F.3d at 495). “But to serve as a comparator, the other employee
must be ‘similarly situated’ to the plaintiff.” Clinton, 2021 WL 1166737, at *11 (quoting Burley,
801 F.3d at 301). The individuals reassigned to the Unit—GS-9s and below, see Def.’s Resp.
at 8—were not comparable to Tumblin, a GS-12, see Tumblin Dep. at 27. Because Tumblin
“fail[ed] to produce evidence that the comparators were actually similarly situated to [her], an
inference of falsity or [retaliation] is not reasonable, and summary judgment is appropriate.”
Walker v. McCarthy, 170 F. Supp. 3d 94, 108 (D.D.C. 2016) (cleaned up).
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Non-Selection to the QA Reviewer Rotational Program
“[W]hen an employer seeks to rely on ‘fairly administered’ process to justify an
employment action, the process must in fact be fair. A selection process that relies on numerical
scores given by a panel of interviewers is only as fair as the panelists who give the scores.” Iyoha,
927 F.3d at 570 (quoting Salazar v. Wash. Metro. Transit Auth., 401 F.3d 504, 509 (D.C. Cir.
2005)). A plaintiff may “contend[] that [s]he should have received scores either equal to or higher
than the scores given to the candidates selected for the positions. But, unless a ‘demonstrably
[retaliatory] motive’ is apparent, . . . ‘[t]he Court must respect the employer’s unfettered discretion
to choose among qualified candidates.’” Iyoha v. Architect of Capitol, 282 F. Supp. 3d 308, 331
(D.D.C. 2017) (quoting Adeyemi v. Dist. of Columbia, No. 04-cv-1684, 2007 WL 1020754, at *21
(D.D.C. Mar. 31, 2007)) (cleaned up). Tumblin was not the most qualified candidate. She received
a lower overall score than six of the other candidates. See Individual Rating Forms. Because she
was not “significantly better qualified for the job” than the selected candidates, Tumblin cannot
establish pretext. Holcomb, 433 F.3d at 897.
Tumblin responds by alleging that the panel results were tainted because Foster colluded
with other panelists to lower Tumblin’s scores. See Pl.’s Opp’n at 28. Tumblin’s theory is entirely
based on her impression of a single piece of evidence: Foster’s score sheet. See Tumblin’s Ratings
at 3. The score sheet shows that Foster crossed out Tumblin’s score of three 4s and changed them
to three 3s, leaving Tumblin with a total score of fifty-seven points. See Rotational Board Final
Decision at 2. The score sheet provides no indication of when or why Foster made the change. See
id. And “[Tumblin] may not merely point to unsupported self-serving allegations, but must
substantiate [her] allegations with sufficient probative evidence that would permit a finding in
[her] favor without resort to speculation, conjecture, or fantasy[.]” Reed, 561 F.3d at 790–91
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(cleaned up). Despite fulsome discovery, Tumblin has not produced evidence to support her
contention. See Def.’s Resp. at 15. Regardless, Tumblin would have only received sixty points if
she had received the original score of 4s from Foster. See Rotational Board Final Decision at 2. A
score of sixty would not have changed her seventh-place ranking. See id. Additionally, Tumblin
does not challenge any of the other panelists’ scores, many of which were lower than Foster’s
scores. See Pl.’s Opp’n at 28. As such, a reasonable juror could not infer that the panelists’ scoring
was pretextual. See Brady, 520 F.3d at 497.
Tumblin’s fixation on her comparatively low scores for interpersonal skills is unavailing.
See Pl.’s Opp’n at 6–7, 25–27; Individual Rating Forms. Tumblin argues the four panelists’ scores
in this category are evidence of pretext because she received “excellent” and “outstanding” scores
related to her communication and interpersonal skills in her 2012–2016 performance appraisal
reports. See Pl.’s Opp’n at 25–27. Tumblin provided her 2012–2016 performance appraisals in
support of this claim. See Pl.’s Opp’n, Ex. 4, Teresa Tumblin Performance Appraisals, ECF No.
38-4. However, Tumblin does not allege that these performance appraisal reports were available
to the panel. See Reply in Supp. of Def.’s Mot. for Summ. J. 22–23, ECF No. 39. And no record
evidence indicates that they were available. See Def.’s Mot. for Summ. J., Ex. 30, Dep. of Kenneth
G. Strother 63, ECF No. 37-32; Addendum for Achieving Results; Individual Rating Forms. Thus,
“the [performance appraisal reports] in Exhibit [4] are not relevant to the non-selection decision
because they were not considered separately by the [panel] when selecting the new [position].”
Youssef v. Lynch, 144 F. Supp. 3d 70, 92 (D.D.C. 2015). Moreover, Tumblin’s seventh-place
ranking would be unchanged even if she had received 5s from the four panelists in the interpersonal
ability category, raising her overall score to seventy. See Tumblin’s Ratings; Rotational Board
Final Decision at 2.
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Three additional facts support Defendant’s argument. First, Tumblin admits that selection
to the one-year detail would not have resulted in a promotion or salary increase. See Pl.’s Opp’n
at 49. Second, she acknowledges that she received an offer for the QA Reviewer rotational program
nine months later when a vacancy arose for which her scoring made her an eligible candidate. See
Email from Kevin Donovan to Teresa Tumblin. Third, when Donovan independently re-ranked
the candidates based on different criteria, Tumblin once again ranked seventh out of eight. See
NNCP QA Rotation Selections at 2–3. This was in part due to her “minimally successful”
productivity score. See Addendum for Achieving Results at 2–4; Table of Applicants’
Qualifications at 2. Taken together, this evidence further corroborates the “absen[ce of a]
demonstrably [retaliatory] motive.” Fischbach, 86 F.3d at 1183 (cleaned up).
Accordingly, summary judgment is appropriate. See Clinton, 2021 WL 1166737, at *9–11.
IV. CONCLUSION
For the foregoing reasons, the Court will GRANT Defendant’s Motion for Summary
Judgment in an accompanying order.
2022.11.10
14:16:11 -05'00'
Date: November 10, 2022 ___________________________________
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE
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