in this court on June 15, 2000, within 90 days of the EEOC's
final decision, as required by 42 U.S.C. § 2000e-16(c) and
29 C.F.R. § 1614.408. On August 21, 2000, the defendant filed a
motion to dismiss, which the court subsequently denied.
Sanders, 131 F. Supp.2d 225.
Now that discovery has closed, the defendant asserts that
there is no evidence in the record that any of its actions were
motivated by Mr. Sanders' race or his participation in protected
EEO activity. Mot. for Summ. J. at 1. According to the
defendant, Mr. Sanders's discrimination claims are based only on
his personal beliefs that he was more qualified than his
co-workers and that the defendant transferred him to reduce his
chances for promotion. Id. at 1-2. The defendant argues that
these subjective beliefs are insufficient to create a genuine
issue of material fact and, as such, Mr. Sanders cannot make out
a prima-facie case of racial discrimination or retaliation under
Title VII. Id. at 2, 8, 16; FED. R. CIV. P. 56(c). The court
disagrees, and denies the defendant's motion for summary
judgment on both counts.
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when "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 a judgment as a matter of law." FED. R. Civ. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Diamond v. Atwood,
43 F.3d 1538, 1540 (D.C.Cir. 1995). To determine which facts are
"material," a court must look to the substantive law on which
each claim rests. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "genuine
issue" is one whose resolution could establish an element of a
claim or defense and, therefore, affect the outcome of the
action. Celotex, 477 U.S. at 322, 106 S.Ct. 2548; Anderson,
477 U.S. at 248, 106 S.Ct. 2505.
In ruling on a motion for summary judgment, the court must
draw all justifiable inferences in the nonmoving party's favor
and accept the nonmoving party's evidence as true. Anderson,
477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however,
must establish more than "the mere existence of a scintilla of
evidence" in support of its position.*fn3 Id. at 252, 106
S.Ct. 2505. To prevail on a motion for summary judgment, the
moving party must show that the nonmoving party "fail[ed] to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex, 477 U.S. at
322, 106 S.Ct. 2548. By pointing to the absence of evidence
proffered by the nonmoving party, a moving party may succeed on
summary judgment. Id.
In addition, the nonmoving party may not rely solely on
allegations or conclusory statements. Greene v. Dalton,
164 F.3d 671, 675 (D.C.Cir. 1999); Harding v. Gray, 9 F.3d 150,
154 (D.C.Cir. 1993). Rather,
the nonmoving party must present specific facts that would
enable a reasonable jury to find in its favor. Greene, 164
F.3d at 675. If the evidence "is merely colorable, or is not
significantly probative, summary judgment may be granted."
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505 (internal
citations omitted). Finally, the D.C. Circuit has directed that
because it is difficult for a plaintiff to establish proof of
discrimination, the court should view summary judgment motions
in such cases with special caution. Aka v. Washington Hosp.
Ctr., 116 F.3d 876, 879-80 (D.C.Cir. 1997); see also Johnson
v. Digital Equip. Corp., 836 F. Supp. 14, 18 (D.C. 1993).
B. The McDonnell Douglas Framework
To prevail on a claim of race discrimination under Title VII,
a plaintiff must follow a three-part burden-shifting analysis.
McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). The Supreme Court explained this scheme
First, the plaintiff has the burden of proving by the
preponderance of the evidence a prima facie case of
discrimination. Second, if the plaintiff succeeds in
proving the prima facie case, the burden shifts to
the defendant "to articulate some legitimate,
nondiscriminatory reason for the employee's
rejection." Third, should the defendant carry this
burden, the plaintiff must then have an opportunity
to prove by a preponderance of the evidence that the
legitimate reasons offered by the defendant were not
its true reasons, but were a pretext for
discrimination. . . . The ultimate burden of
persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff
remains at all times with the plaintiff.
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (quoting
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817 (citations
Thus, the plaintiff must first establish a prima-facie case of
prohibited discrimination. McDonnell Douglas, 411 U.S. at 802,
93 S.Ct. 1817; Aka v. Washington Hosp. Ctr., 156 F.3d 1284,
1288 (D.C.Cir. 1998) (en banc); Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 140-43, 120 S.Ct. 2097, 147
L.Ed.2d 105 (2000). The plaintiff need not, however, establish a
prima-facie case in the complaint. Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). As a
general matter, a prima-facie case of discriminatory denial of
promotion based on race consists of the following elements: (1)
the plaintiff is a member of a protected class; (2) the
plaintiff applied for and was qualified for the position at
issue; (3) despite the plaintiffs qualifications, the defendant
rejected the plaintiff; and (4) the position was filled by a
similarly qualified employee from outside the protected class.
McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Bundy v.
Jackson, 641 F.2d 934, 951 (D.C.Cir. 1981).
To demonstrate a prima-facie case of retaliation, the
plaintiff must establish the following elements: (1) the
plaintiff was engaged in protected activity; (2) the employer
took an adverse personnel action against her; and (3) there is a
causal link between the adverse action and the protected
activity. Jones v. Washington Metro. Area Transit Auth.,
205 F.3d 428, 433 (D.C.Cir. 2000).
The plaintiff has the burden of proving the prima-facie case
by a preponderance of the evidence. Burdine, 450 U.S. at
25253, 101 S.Ct. 1089. "The burden of establishing a prima facie
case of disparate treatment is not onerous." Id. at 253, 101
S.Ct. 1089. By proving a prima-facie case, the plaintiff has
established "a legally
mandatory, rebuttable presumption." Id. at 254 n. 7, 101 S.Ct.
1089. Accordingly, if at trial, the trier of fact believes the
plaintiffs evidence and if the employer is silent in the face of
the presumption, the court must enter judgment for the plaintiff
because no issue of fact remains in the case. Id. at 254, 101
S.Ct. 1089. In addition, once a plaintiff can demonstrate that
she has met objective employment qualifications, the plaintiff
has established her prima-facie case. Accord Medina v. Ramsey
Steel Co., 238 F.3d 674, 681 (5th Cir. 2001) (stating that
while courts should consider objective qualifications at the
first step of the McDonnell Douglas framework, courts should
consider subjective criteria only at the second and third steps
of the analysis to avoid collapsing the entire analysis into a
single initial step); Jayasinghe v. Bethhem Steel Corp.,
760 F.2d 132, 135 (7th Cir. 1985) (same); Burrus v. United Tel.
Co., 683 F.2d 339, 342 (10th Cir. 1982) (same); Lynn v.
Regents of the Univ. of California, 656 F.2d 1337, 1344 (9th
Cir. 1981) (same); Walker v. Mortham, 158 F.3d 1177, 1192-93
(11th Cir. 1998) (holding that while a plaintiff may need to
address relative qualifications between job applicants if the
defendant presents them to rebut the plaintiffs presumption of
discrimination, the plaintiff need not introduce evidence
regarding relative qualifications to prove her prima-facie
If the plaintiff succeeds in making a prima-facie case, the
burden shifts to the employer to articulate a non-discriminatory
reason for its action. The employer's burden, however, is merely
one of production. Burdine, 450 U.S. at 254-55, 101 S.Ct.
1089. The employer "need not persuade the court that it was
actually motivated by the proffered reasons. It is sufficient if
the defendant's evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff." Id. If the
employer is successful, the burden shifts back to the plaintiff
to show that the defendant's proffered reasons are pretextual
and that unlawful discrimination was the real reason for the
action. McDonnell Douglas, 411 U.S. at 802-05, 93 S.Ct. 1817;
St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508, 113 S.Ct.
2742, 125 L.Ed.2d 407 (1993).
The defendant's explanation of its legitimate reasons must be
"clear and reasonably specific" so that the plaintiff is
"afforded a full and fair opportunity to demonstrate pretext."
Burdine, 450 U.S. at 258, 101 S.Ct. 1089 (citation omitted).
The defendant must articulate a clear and reasonably specific
factual basis for its subjective reason to be legally
sufficient, legitimate, and nondiscriminatory. Id. As the
Eleventh Circuit has explained:
[I]t might not be sufficient for a defendant employer
to say it did not hire the plaintiff applicant simply
because "I did not like his appearance" with no
further explanation. However, if the defendant
employer said, "I did not like his appearance because
his hair was uncombed and he had dandruff all over
his shoulders," or . . . "because he came to the
interview wearing short pants and a T-shirt," the
defendant would have articulated a "clear and
reasonably specific" basis for its subjective opinion
— the applicant's bad (in the employer's view)
appearance. That subjective reason would therefore be
a legally sufficient, legitimate, nondiscriminatory
reason for not hiring the plaintiff applicant.
Chapman v. AI Transport,