The opinion of the court was delivered by: FRIEDMAN
John Blair Hayes, an African American male, has worked at the Department of Health and Human Services ("HHS"), Administration for Children and Families, Division of Acquisition Management, since 1975. He is currently a Level IV Contracts manager and a GS-14 step 10. In the mid-1980s, Mr. Hayes brought an employment discrimination action against HHS. In 1989, he and HHS entered into a settlement agreement which included an agreement to promote Mr. Hayes to his current GS-14 level, backpay and injunctive relief. In 1992, Mr. Hayes was denied promotion to a GM-15 supervisory position. The job was given to Barbara Twombly, a white female from outside HHS.
Mr. Hayes brought suit (Civil Action No. 93-1504, Hayes I), alleging violations of Title VII, namely, that he was not selected for the supervisory position because of racial discrimination and also in retaliation for his previous Title VII suit and settlement. Two years later, after having served under the supervision of Ms. Twombly, Mr. Hayes brought another suit (Civil Action No. 94-1645, Hayes II) alleging various instances of race and sex discrimination and retaliation, including denial of credit hours, unfair performance ratings, the instigation of a frivolous investigation against him, a groundless reprimand, and the use of abusive language. These consolidated cases are now before the Court on defendant's motion for summary judgment with respect to Civil Action Nos. 93-1504 and 94-1645 and plaintiff's opposition thereto.
I. SUMMARY JUDGMENT STANDARD
Under Rule 56, Fed. R. Civ. P., summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed. R. Civ. P. Material facts are those that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a summary judgment motion, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id at 255 see also Washington Post Co. v. United States Dep't of Health and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989).
The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Rule 56(e), Fed. R. Civ. P.; Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The non-moving party is "required to provide evidence that would permit a reasonable jury to find" in its favor. Laningham v. United States Navy, 259 U.S. App. D.C. 115, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the non-movant's evidence is "merely colorable" or "not significantly probative," summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50.
In an employment discrimination case, the plaintiff carries the initial burden of showing that the employer's actions, if unexplained, were more likely than not based on illegal discriminatory criteria. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576, 57 L. Ed. 2d 957, 98 S. Ct. 2943 (1978); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). To establish a prima facie case of discriminatory nonselection, a plaintiff must show that (1) he or she belongs to a statutorily protected group, (2) he or she applied and was qualified for a job for which the employer was seeking applications, (3) despite his or her qualifications, he or she was rejected, and (4) the position remained open. McDonnell Douglas Corp. v. Green, 411 U.S. at 802; see, e.g., Garrett v. Lujan, 799 F. Supp. 198, 199-200 (D.D.C. 1992). Once plaintiff has made out this prima facie case, the burden of production shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for its conduct. McDonnell Douglas Corp. v. Green, 411 U.S. at 802-05. The burden then shifts back to the plaintiff to provide some evidence, either direct or circumstantial, that the articulated reason for the defendant's conduct is merely pretextual. Id.
In order to establish a prima facie case of retaliation, a plaintiff must show that (1) he or she has engaged in statutorily protected behavior, (2) he or she was subject to adverse personnel action by an employer, and (3) a causal connection existed between the two. Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985) (citations omitted). As in a discrimination case, once the plaintiff has made out a prima facie case, the burden of production shifts to the employer to articulate a legitimate nondiscriminatory reason for the action, after which point the burden is on the plaintiff to demonstrate that the proffered reason is pretextual. 759 F.2d at 87-88.
Defendant relies on St. Mary's Honor Center v. Hicks, 509 U.S. 502, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993), in which the Supreme Court described the plaintiff's final burden of persuasion. See Barbour v. Merrill, 310 U.S. App. D.C. 419, 48 F.3d 1270, 1277 (D.C. Cir. 1995) ("According to Hicks, a plaintiff need only establish a prima facie case and introduce evidence sufficient to discredit the defendant's proffered reasons; at that point, the factfinder, if so persuaded, may infer discrimination.") (citations omitted). While Hicks holds that the factfinder at trial is not compelled to infer discriminatory pretext even when the plaintiff has discredited the employer's proffered reasons, at the summary judgment stage it is inappropriate for the Court to make that factual determination. If, on the basis of the probative evidence submitted in opposition to summary judgment under Rule 56(e), Fed. R. Civ. P., a reasonable factfinder could infer discrimination, summary judgment is inappropriate.
In Hayes I, plaintiff alleges both discrimination and retaliation in his nonselection for the supervisory GM-15 position. Plaintiff has made out his prima facie case on both claims. With respect to his discrimination claim, plaintiff has shown that he was a member of a protected class, that he was a qualified applicant, and that he was rejected for the job which was subsequently given to someone not in the protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. at 802. With respect to the retaliation claim, plaintiff has shown that he has engaged in protected behavior and that he was subject to adverse action by his employer. Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985). Defendant argues, however, that plaintiff has not demonstrated the requisite causal link between the protected activity (his 1989 lawsuit) and the adverse action (his nonselection in 1992). Id. The Court disagrees.
"The causal connection component of the prima facie case may be established by showing that the employer had knowledge of the employee's protected activity, and that the adverse personnel action took place shortly after that activity." Mitchell v. Baldrige, 759 F.2d at 86. In this case, Robert Stovenour, Mr. Hayes' supervisor who failed to recommend him for the promotion in 1992, knew about and implemented the terms of the 1989 settlement. While the nonselection took place three years after the protected activity, plaintiff argues that since he applied for no other job in the interim, this was the first time he was vulnerable to retaliation. See Globus v. Skinner, 721 F. Supp. 329, 334-35 (D.D.C. 1989) (two year lag between protected activity and personnel action was sufficient to support inference of reprisal where plaintiff's participation in litigation lasted until shortly before she was laid off). In light of Mr. Stovenour's duty to enforce the terms of the settlement agreement and his supervisory role, the Court cannot preclude the inference of causality for purposes of the prima facie case. But see Garrett v. Lujan, 799 F. Supp. 198, 202 (D.D.C. 1992) (one year lag between protected activity and nonselection was too great to support an inference of reprisal).
Having concluded that plaintiff has made out a prima facie case of both discrimination and retaliation, the Court next looks at the employer's proffered reasons and at the issue of pretext. Defendant has articulated legitimate nondiscriminatory reasons for plaintiff's nonselection in response to both Mr. Hayes' discrimination and retaliation claims. Mr. Stovenour states that he recommended Ms. Twombly because she was an outsider, because of her experience in implementing ...