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JONES v. TANOUE

February 16, 2001

GISELLE JONES, 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, plaintiff's opposition and defendant's reply. Plaintiff Giselle Jones, an African-American female, began her employment with the Federal Deposit Insurance Corporation ("FDIC") in 1993, as a term employee in the Division of Finance ("DOF"). On June 10, 1996, plaintiff applied for a permanent Supervisory Travel Policy Specialist position in the DOF. Plaintiff was interviewed and, according to plaintiff, she was advised that her selection for the job was contingent on her conversion to a permanent position being approved. Plaintiff's conversion was not approved and plaintiff was not selected for the position. That position was not filled, the vacancy announcement was canceled, and a similar announcement was subsequently posted for permanent employee applicants only. Plaintiff alleges that she was not selected because of racial discrimination. Defendant contends that plaintiff has failed to establish a prima facie case of discriminatory non-selection because the position did not remain open and was not filled by a person outside plaintiff's protected class. For the reasons explained more fully below, the Court finds that based on the undisputed evidence, plaintiff cannot establish a prima facie case, and therefore, summary judgment is granted.

BACKGROUND

Plaintiff began her employment at FDIC in July 1993 as a Grade 11 term employee in DOF. (Def.St. ¶ 1.) Plaintiff applied for a permanent Supervisory Travel Policy Specialist position in the DOF in June 1996. (Def.St. ¶ 2.) Plaintiff contends that after her interview for the position with Edgar Bolick, he told that she was his choice for the job, but that her selection was contingent on her conversion to a permanent position being approved. (Pl.St. ¶ 4.) Plaintiff contends that Bolick said he did not anticipate that her conversion would be a problem. (Id.) Plaintiff's conversion was not approved and plaintiff was not selected for the position. Defendant contends that the request for approval of plaintiff's conversion was withdrawn after Thomas Peddicord determined that it would be inconsistent with both current and proposed core staffing levels. (Pl.St. ¶ 13; Def.Ex. 3.) The position was not filled and the vacancy announcement was canceled. (Def.St. ¶ 3.)*fn1 Defendant claims that the position was mistakenly posted as being available to both term/temporary and permanent employees, because the core staffing levels in place at that time did not permit the conversion of a term or temporary employee to a permanent employee. Plaintiff contends that the core staffing levels would have supported her conversion to a permanent position at that time, and that a conversion was denied because of her race. After the cancellation of the vacancy announcement, a similar position, Supervisory Travel Audit Specialist, was posted for permanent employees only. (Pl.St. ¶ 9.) This position was ultimately filled by an African-American woman. (Def.Ex.8.)

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). See also Laningham v. United States Navy, 813 F.2d 1236, 1242 (D.C.Cir. 1987); 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 discriminatory non-selection under Title VII, plaintiff must establish that: (1) plaintiff is a member of a protected class; (2) she applied for and was qualified for an available position; (3) she was not selected; and (4) either someone not of his 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 plaintiff is a member of a protected class and that she was not selected for the permanent Supervisory Travel Policy Specialist position for which she applied.*fn2

Defendant argues that plaintiff cannot establish the fourth prong of the prima facie case because the position for which plaintiff applied was canceled. It is therefore undisputed that this position was neither filled by an individual outside the protected class nor remained open while defendants continued to receive applications. Given these undisputed facts, plaintiff cannot establish a prima facie case of discriminatory non-selection. Carter v. Pena, 14 F .Supp.2d 1, 6 (D.D.C. 1997) ("Because the DOE canceled the vacancy announcements at issue, the position did not remain open, and Carter cannot meet the fourth requirement of the [prima facie case]."), aff'd, 1998 WL 315616 (D.C.Cir. April 8, 1998).*fn3 After the cancellation, a similar position was posted, open only to permanent employee applicants. (Pl.St. ¶ 9.) As a term employee, plaintiff did not qualify, and did not apply, for this position. While plaintiff argues that this second position was first offered to a white female, it is undisputed that the position was ultimately filled by an African-American female. (Pl.St. ¶ 10; Def.Ex. 8.)

Moreover, plaintiff has presented no evidence that the vacancy announcement for the position was canceled for a discriminatory reason. Plaintiff argues that because she could have been converted to a permanent position consistent with the core staffing levels, one should infer that the vacancy announcement was canceled because of her race. The undisputed evidence undermines any such inference, since the core staffing levels would not have permitted her conversion to a permanent position. On February 27, 1996, Dennis Geer, Chief Operating Officer of the FDIC, sent a memo to all division directors instructing that:

As employees are selected to fill both permanent and term/temporary positions in your organization, you are responsible for ensuring that these selections do not result in your organization exceeding its approved core staffing levels (for permanent staff) or its approved staffing levels for year-end 1996 (for total staffing). In particular, if your permanent workforce currently equals or exceeds your approved core staffing levels (by location, grade and position type), you should not fill vacancies with permanent appointees.*fn4
  (Pl.Ex.5.) Under the core staffing levels in effect in August 1996, "Core 1," DOF headquarters was permitted a total of 158 permanent staff, including 18 staff for the travel/relocation function. (Pl.Ex. 3; Def. Reply Ex. 2 (Peddicord Dep. at 93-94).) As of July 6, 1996, there were 321 permanent employees at DOF headquarters, which exceeded the approved core staffing level by 163 employees. (Def.St. ¶ 6; Def. Ex. 3.) DOF operated under these core staffing levels until December 1996. (Def. Reply Ex. 2 (Peddicord Dep. at 104-07).) Therefore, the approved core staffing levels in effect did not permit the conversion of plaintiff from a term position to a permanent position. (Id.; Def.Ex. 3.)*fn5

Moreover, plaintiff's conversion to a permanent position would not have been permitted under the "Core 2" levels even if they had been in effect, which they were not. Core 2 levels were proposed in August 1996, and approved in December 1996, and set year-end and mid-year staffing levels for 1996-1999 and 2000 core staffing levels. (Def.Ex. 3; Def. Reply Ex. 2 (Peddicord Dep. at 93).)*fn6 The proposed Core 2 levels anticipated a work load that would sustain 45 supervisors/managers from Grade 12-15 at DOF Headquarters at year-end 1996. (Def.Ex.3.) In August 1996 there were 43 permanent supervisors/managers from Grade 12-15, and one temporary or term supervisor. (Id.; Def. Reply Ex. 2 (Peddicord Dep. at 96-101).) Plaintiff argues that one vacancy existed for a permanent supervisory position, and therefore, she could have ...


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