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BALL v. TANOUE

February 16, 2001

CHERYL BALL, PLAINTIFF,
V.
DONNA TANOUE, IN HER CAPACITY AS CHAIRMAN, FEDERAL DEPOSIT INSURANCE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Huvelle, District Judge.

  MEMORANDUM OPINION

Before the Court is defendant's motion for summary judgment, plaintiffs opposition and defendant's reply. Plaintiff Cheryl Ball, an African-American female, began her employment with the Federal Deposit Insurance Corporation ("FDIC") in 1991. In April 1996, while plaintiff was employed as a Grade 7 Administrative Assistant ("AA"), she applied for three positions: a different Grade 7 AA position, a Grade 8/9 Assistant Course Administrator ("ACA") position, and a Grade 7/9/11/12 Employee Development Specialist ("EDS") position. In July 1996 plaintiff was promoted to an ACA position at Grade 8. Plaintiff alleges that her nonselection for the EDS position was a result of race discrimination. Plaintiff also alleges that after filing EEOC complaints regarding this non-selection and other matters, she was retaliated against. Defendant contends that plaintiffs non-selection for the EDS position in 1996 was not discriminatory, as evidenced by the fact that two African-Americans received EDS positions at that time. Defendant further argues that plaintiff suffered no adverse action causally related to her statutorily protected EEOC activity. For the reasons discussed more fully below, the Court finds that plaintiff has not established a prima facie case of either discrimination or retaliation, and therefore, summary judgment is granted.

BACKGROUND

LEGAL ANALYSIS

I. Standard of Review

Under Fed.R.Civ.P. 56, a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, the "evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255, 106 S.Ct. 2505; see also Washington Post Co. v. United States Dep't of Health and Human Servs., 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. Fed.R.Civ.P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party must provide evidence that would permit a reasonable jury to find in the non-moving party's favor. Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. 2505 (citations omitted).

II. Discrimination

In order to state a prima facie case of discrimination under Title VII, plaintiff must establish: (1) that she is a member of a protected class; (2) that she suffered an adverse employment action; and (3) that the unfavorable action gives rise to an inference of discrimination. Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir. 1999). In the failure to hire context, the prima facie case requires a showing that (1) plaintiff is a member of a protected class; (2) she applied for and was qualified for an available position; (3) despite her qualifications she was rejected; and (4) either someone not of her protected class filled the position or the position remained vacant and the employer continued to seek applicants. Cones v. Shalala, 199 F.3d 512, 516 (D.C.Cir. 2000). It is undisputed that of the five EDS positions, two were filled by African-Americans, including one of the entry level positions. (Def.St. ¶ 3.) This Court has held that under such circumstances, plaintiff cannot establish a prima facie case. Ramsey v. Derwinski, 787 F. Supp. 8, 11 (D.C. 1992) ("Plaintiffs non-selection must be viewed in the context of the hiring for all four positions. In addition to the black man who was selected for the specific position plaintiff sought, a black woman, a white man and a black man were selected. That fact virtually eliminates any inference of discrimination on the basis of sex or race."). See also Brody, 199 F.3d at 451 ("On [plaintiffs] . . . claim [of] non-selection for a desired lateral transfer, the district court correctly observed that any sexual discrimination claim would be baseless because two of the three employees selected for the transfer were women.").

Plaintiff argues, citing Phillips v. Holladay Property Servs., 937 F. Supp. 32, 35 (D.C. 1996), aff'd without op., 1997 WL 411695 (C.A.D.C. June 19, 1997), that she can satisfy the fourth element of the prima facie case by creating an inference of discrimination based on a claim that similarly situated white employees were treated better. However, to be considered "`similarly situated,' the individuals with whom the plaintiff seeks to compare []her treatment must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Id. at 37 (citation omitted); see also Holbrook v. Reno, 196 F.3d 255, 261 (D.C.Cir. 1999) ("A plaintiff must . . . demonstrate that all of the relevant aspects of her employment situation were nearly identical to those" of the comparators) (citation omitted).

Plaintiff argues that the three white candidates who were hired in EDS positions in 1996 (Nadine Simon, Angela Sanford, and Kay Zielinski) were similarly situated to plaintiff. This argument is, however, belied by the undisputed facts. Each of these three women was employed in a different position, at a higher grade, with a different supervisor,*fn1 and different job responsibilities than plaintiff. When they applied for the EDS positions, Simon and Sanford were in Grade 9 ACA positions and Zielinski was in a Grade 11/Temporary Grade 12 EDS position. (Def.St. ¶ 5; Pl.St. ¶ 4.)*fn2 Given these differences, their selection over plaintiff does not show disparate treatment or raise an inference of discrimination.

Plaintiff also argues that these individuals were more favorably treated in that when Sanford and Simon were ACA's, they were provided with EDS-type job assignments that enhanced their ability to be selected in 1996 for the EDS positions. Plaintiff essentially argues that these individuals were more qualified, or at least more likely to be selected, because of the superior training and experience they had at the FDIC. That Simon and Sanford were given EDS-type responsibilities while they were in ACA positions does not show disparate treatment, since plaintiff, before competing for the EDS job, was in an AA position.*fn3 That they received different responsibilities in different positions does not show disparate treatment. Plaintiff has not established that they "dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Phillips, 937 F. Supp. at 37.

With respect to Zielinski, plaintiff argues essentially that Zielinski's career path at FDIC has been more favorable than her own, beginning with her promotion to a Grade 7 temporary EDS position in 1993. There is no evidence, and plaintiff does not argue, that plaintiff applied for that position in 1993. There is simply no relevance to what Zielinski has done throughout her tenure at FDIC. The only similarity is that they began their careers at FDIC within one year of each other, in similar, but not identical positions, and ultimately both aspired to and applied for EDS positions. This evidence is insufficient to establish that "all of the relevant aspects of her employment situation were nearly identical to those" of Zielinski. Holbrook, 196 F.3d at 261. Even if Zielinski were similarly situated to plaintiff at some point during their tenure at FDIC and received a benefit that plaintiff did not receive (but did apply for), this would not ...


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