The opinion of the court was delivered by: STANLEY S. HARRIS
Before the Court is defendant's motion for partial summary judgment as to plaintiff's claims of employment discrimination based on gender and reprisal for participating in prior Equal Employment Opportunity (EEO) activity. These claims involve the placement of Robert Fagin in the position of Deputy Director of Administration and Finance at the Office of Surface Mining and Reclamation (OSM) in the Department of the Interior. Because there is no genuine dispute of material fact and defendant is entitled to judgment as a matter of law, the Court grants the motion.
Plaintiff, an employee of the Department of the Interior, sues defendant, Manuel Lujan, in his official capacity as Secretary of the Interior. The events giving rise to plaintiff's claims stem from another unrelated discrimination case against the Department of the Interior. In that suit, Walter Sander prevailed against the Department of the Interior and was awarded equitable relief. See Lander v. Hodel, 1988 U.S. Dist. LEXIS 13105, 48 Fair Empl. Prac. Cas. (BNA) 1265 (D.D.C. 1986). As part of that remedy, Lander was placed in the position of Associate Director, Finance and Management at the Bureau of Mines, which was then occupied by an innocent incumbent, Fagin. As a result, the Department of the Interior noncompetitively reassigned Fagin to the position of Deputy Director of Administration and Finance at the OSM. (Dep. of Lou Gallegos at 66.) The Executive Resources Board (ERB) approved Fagin's reassignment. (Dep. of Charles E. Kay at 29-53; Ex. G, April 27, 1989 Mem. from Director of Personnel to Principal Deputy Assistant Secretary, Policy, Budget and Admin.) At that time, the ERB consisted of Charles Kay, Lou Gallegos, Tom Weimer, Earl Gjelde, and Lujan. (Dep. of Frederick L. Nims, Jr. at 11; Dep. of Charles E. Kay at 33.) Immediately prior to Fagin's noncompetitive reassignment, plaintiff held the Deputy Director position on an acting basis. (Ex. 1 at PP 4-5; Second Am. Compl. P 26.) Plaintiff alleges that the Department's noncompetitive reassignment of Fagin to that position was motivated at least in part by discrimination based on her gender and her participation in EEO activities.
1. Gender Discrimination Claim
It is undisputed that plaintiff, a female, belongs to a statutorily protected group. Plaintiff contends, and defendant does not dispute, that plaintiff is qualified for the Deputy Director position. (Def.'s Mot. for Partial Summ. J., at 12.) Fagin, the person selected for the position, is male and not a member of plaintiff's protected class. Therefore plaintiff satisfies prongs (1) and (3) of the McDonnell Douglas test.
Since defendant noncompetitively reassigned Fagin into the Deputy Director position, plaintiff had no opportunity to apply for it. Under these facts, prongs (2) and (4) of the McDonnell Douglas test are inapplicable. However, that does not automatically bar plaintiff from bringing a discrimination claim. Justice Powell, writing for a unanimous Court in McDonnell Douglas, noted that the elements of a Title VII employment discrimination claim may vary to accommodate the purposes of the legislation:
The facts necessarily will vary in Title VII cases, and the specifications above of the prima facie proof required from respondent is not necessarily applicable in every respect to differing factual situations. McDonnell Douglas, 411 U.S. at 802 n.13.
The language of 42 U.S.C.A. § 2000e-16 is to be construed broadly to extend to "all personnel actions" based on sex. Palmer v. Shultz, 815 F.2d 84, 90 (D.C. Cir. 1987). If plaintiff could demonstrate through the use of specific facts that the noncompetitive selection process was itself discriminatory, plaintiff would have a cause of action. Plaintiff makes several allegations which might create a genuine issue for trial, however, plaintiff's evidence regarding these allegations is either inadmissible or immaterial. Nevertheless, even considering the facts in a light most favorable to plaintiff, Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), the facts fail to support a prima facie case of gender discrimination. The Court addresses each allegation in turn.
First, plaintiff offers evidence of alleged discriminatory comments made by Harry Snyder about plaintiff.
However, that evidence is hearsay and is inadmissible to support a motion for summary judgment. See Fed. R. Civ. P. 56(e).
Even if it were admissible, it is immaterial since Snyder was not a member of the ERB at the time Fagin's reassignment was approved.
Stray remarks by persons not involved in the employment decision-making process are not material to a finding of discrimination unless those remarks are made to the decision-makers and have some impact on the selection process. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (0'Connor, J., concurring in the judgment). Plaintiff offers no evidence that Snyder made either this or a similar remark about plaintiff to the ERB or its members.
Second, plaintiff claims that Lujan told Robert Gentile, who was then the Director of OSM, of his desire to place women into the two vacant Deputy Director positions. This is also inadmissible hearsay. Even if it were not hearsay, and were assumed to be true, it is not evidence that discriminatory bias motivated Lujan's later decision not to compete the position.